On November 26, 2024, the New Jersey School Ethics Commission (SEC) released a plethora of Public Advisory Opinions. This article will bring your attention to two of the recently released Advisory Opinions that directly impact superintendents.

In Public Advisory Opinion A14-24,[1] the SEC was asked if, before the vote on a superintendent-recommended candidate for employment, it was appropriate under the School Ethics Act (the Act)[2] for a board member to seek to examine all the candidates’ resumes submitted for the position. Though the SEC responded that it was beyond its scope to consider whether the board member could be granted such access, it cautioned that if board members are permitted to have such access, the board member’s role would be limited to observation and assessment. The SEC further emphasized:

Selecting candidates for District positions and making recommendations is exclusively the role of the Superintendent. Therefore, the Commission further cautions the Board member that if he/she is permitted to review the resumes, he/she should not become directly involved in selecting a candidate for the position, as that responsibility belongs solely to the Superintendent (N.J.S.A. 18A:12-24.1(d)).[3]        

The SEC also explained that a board member’s role is to appoint the best-qualified personnel only after considering the superintendent’s recommendation. The board and its individual members must always be mindful that it is the superintendent’s responsibility to make personnel recommendations, including hiring. Board members can vote on these recommendations.[4] While this opinion did not directly interpret the Act, it underscored key elements of board governance in the hiring process as reflected in the Board Member Code of Ethics.[5]

In Public Advisory Opinion A02-24,[6] the SEC was asked to respond to another board member/superintendent-related question. Here, the issue was whether a board member (Board Member A) was conflicted regarding Board Member A’s Superintendent because, in a previous district where the Superintendent was a shared superintendent and Board Member A was an employee, the Superintendent recommended Board Member A’s termination of employment; Board Member A was ultimately terminated.

The history here is that School District A sends its 7-12^th grade students to School District B. The Superintendent of District A was once a shared superintendent with District B, but the Shared Superintendent Agreement expired on June 30, 2023. Board member A was employed by District A. The Superintendent is now the full-time superintendent of District B only. Board Member A disputed her employment termination from District A by (1) requesting a Donaldson Hearing; (2) filing a civil suit against District A and the Superintendent (The lawsuit was settled one year ago.); (3) circulating a petition to have the Superintendent terminated; and (4) erecting billboards throughout the relevant towns urging parents to send their children to District B (while the Superintendent was still shared with District A).

More recently, Board Member A filed SEC charges against the Superintendent and one of the administrators in District B. She also filed a lawsuit against District B’s board, alleging that it failed to follow proper procedures when it approved the Superintendent’s employment contract. She later withdrew the litigation. When this Advisory Opinion was issued, Board Member A had a pending SEC charge against a former fellow board member in District B.

The SEC opined that Board Member A is conflicted in personnel matters regarding the Superintendent and should recuse herself from all personnel matters concerning the Superintendent.  The SEC reasoned that the circumstances described between Board Member A and the Superintendent demonstrate that they have a “tenuous” history that stems from the Superintendent’s recommendation that Board Member A be terminated.[7] The SEC emphasized, however, that the termination alone did not create a per se conflict.  The SEC further explained that each potential conflict must be evaluated on a case-by-case basis to determine whether the public might reasonably perceive that the parties’ prior history has the potential to prejudice a board member’s independence of judgment in carrying out his/her duties or could create the justifiable impression that public trust is being violated.

Here, the SEC explained that its view that Board Member A is conflicted concerning the Superintendent is based upon the totality of the circumstances. Specifically, Board Member A filed a civil suit, petitioned the Superintendent’s removal, and placed billboards around the relevant towns urging parents to send students to District B (before the Superintendent started serving District B exclusively). According to the SEC, these actions created the parties’ “tenuous history.”[8] The SEC notes that if Board Member A were to participate in Superintendent personnel matters, the integrity of the board’s vote and her vote would be called into question.[9]

The Act is an indispensable tool for maintaining effective school district governance. School administrators must be able to identify potential board member conflicts of interest as well as their own. The first advisory opinion discussed above outlines appropriate hiring parameters to ensure the integrity of the board and the superintendent's role in that process.  The second advisory opinion demonstrates how a board member’s conflict vis a vis the superintendent can be identified and once resolved, can help to preserve the integrity of the board’s actions. The SEC released several other Advisory Opinions; several of these opinions are discussed in the February 2025 N.J.S.A. Administrative Guide focused on conflicts of interest under the Act.[10]  If you identify a school ethics issue, it is always best to consult the board attorney for guidance to prevent violating the Act.