Board Member Ethics in Executive Session
Questions often arise as to a board member’s obligation to maintain confidentiality with regard to discussions that occur in closed session meetings. In Advisory Opinion A20-12 (October 31, 2012), the New Jersey School Ethics Commission considered whether a board member, who had recused herself from participating in closed session evaluations of the assistant superintendent because both the board member’s husband and brother teach in the district, could later view the minutes from the executive session. The Commission concluded that the board member would only have the same rights to review the executive session minutes as any other member of the public. The Commission reasoned that the inquiry turns on N.J.S.A. 18A:12-24(c) which provides:
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.
The Commission explained that the recused board member could only view the closed session minutes once they could be made available to the public, when the reason for the confidentiality no longer exists. Noting the obligation of all board members to maintain confidentiality, the Commission further instructed that, if another board member were to share the minutes with the recused board member, that board member would violate N.J.S.A. 18A:12-24.1(g).
The Commission came to a similar conclusion with regard to the recused member sitting in on negotiations updates which are given to the entire board during the closed sessions. Here, the Commission concluded that, if the board member recused herself because a spouse or sibling is subject to the district’s collective negotiations agreement, then the board member should receive this information only when it is being made available to the general public.
The Commission also recently decided another issue regarding executive session confidentiality in James Messner and Robert Condo v. Stacy Gray, Deptford Township Board of Education and Walter Berglund v. Stacy Grey, Dkt Nos. C16 -13 and C-22- 13 (December 20, 2013) (consolidated). Therein, the board had gone into executive session to discuss various personnel issues. One was an apology by a board member to an employee; the other was the contracts of four employees. When the board began to discuss the apology letter, the respondent, fearing that she would be treated in an unprofessional manner by other board members due to comments she had made on her blog prior to being elected, and without notifying those present, decided to record the discussion. A board member noticed the “record app” and passed a note to complainant Condo. Condo asked the respondent if she was recording the session and she said yes. The board solicitor advised the complainant that she was not permitted to record the session. The respondent repeatedly insisted that she had the right to record the session. Despite the extended discussion as to whether the respondent had the right to record the session at all, she later shared the recording with two people who were not on the board. The Commission rejected alleged violations of other sections of the School Ethics Act. It did find that, although the board member was within her rights to record the session, she took “private action,” or action that was outside the scope of her duties as a board member, when she intended to and did share the recordings with third parties who would not have been privy to the closed session deliberations, and thus, violated N.J.S.A. 18A:12-24.1(e). Her act of sharing the recorded deliberations had the potential to compromise the board. In addition, she was found to have violated N.J.S.A. 18A:12-24.1(g) for failing to hold these matters confidential which, if disclosed, would needlessly harm individuals or the schools.
The Commission was empathetic as to the respondent’s concern that other board members may have decided to treat her harshly, but the Commission said that, in that event, she could have asked the board solicitor to intervene or could have simply left the session. The Commission recommended that this board member be reprimanded for her actions.
Issues of confidentiality arise frequently and can negatively impact the work of the board and appropriate district governance. When these or related issues arise, it is best to alert and discuss them with the board attorney.