NJASA

The recent release of Advisory Opinion A01-15[1] has inadvertently unleashed a firestorm of controversy related to the misinterpretation of the roles of the board and superintendent in school district hiring. Indeed, A01-15 is a very short Opinion that does not include many of the facts the School Ethics Commission considered before rendering it. However it is important to note that the short Opinion focused on one issue only – whether the representative of a sending district which sends students only to the receiving district high school could participate in any interviews held by the receiving district board to fill positions in the receiving district in schools other than the high school. The School Ethics Commission found that where the receiving board, through its policies, holds interviews for positions in schools other than the high school, the sending representative, whose district sends no students to those other schools, cannot be involved in those interviews. Implied in this decision is that the superintendent and business administrator positions are district-wide administrators and therefore, the sending district representative could be involved in interviews for those positions since they would relate to the high school.

In reading this extremely narrow decision, it is important for superintendents and their boards to recognize that statutes that were passed by the Legislature and signed by the Governor already govern the hiring process in school districts. These statutes could only be repealed through an act of the Legislature and Governor, and not by a School Ethics Commission Advisory Opinion. In this regard, it is crucial for superintendents and board members alike to note the current status of the law in this area:

• Boards of education do not have unfettered rights to interview and appoint candidates to positions. Boards can only appoint candidates upon the recommendation of the chief school administrator under N.J.S.A. 18A:27-4.1. 

• Under the Code of Ethics for School Board Members, N.J.S.A. 18A:12-24.1, board members are required to confine their board action to policy making, planning, and appraisal, and may not administer the schools. 

• The School Ethics Commission has disciplined board members for violating the Code of Ethics and the School Ethics Act when they become excessively involved in district hiring.  See, e.g.,  In the Matter of Julia Hankerson, Woodbine Board of Education, Docket No. C36-02 (2003) (Board member removed for her involvement in district hiring).

More recently, the School Ethics Commission voted to censure a board member for interfering in district hiring. In the case of In the Matter of Rhonda Williams Bembry, Board of Educ. of the City of Hackensack, Bergen County, C.#487-SEC (December 15, 2014), the interim superintendent filed a complaint against Bembry with the School Ethics Commission. In one count of the complaint, he alleged that Bembry discussed confidential information at a board meeting regarding the reappointment of certain principals in the district. With regard to this count, the SEC had previously advised her that she could not participate in the vote regarding the hiring of these individuals, but she participated anyway and voted against their appointment. In another count, the interim superintendent alleged that she gave him an envelope with resumes of individuals to be hired in the district, and contacted other personnel suggesting that these individuals be hired.  In reviewing the facts, the ALJ found Bembry violated N.J.S.A. 18A:12-24(b), which states that no school official may “use or attempt to use his official position to secure unwarranted privileges, advantages, or employment for himself, members of his immediate family or others ….”

Based on the above, it is important for chief education officers and board members alike to keep in mind that board members can be involved in district hiring only to the extent that the district’s policies allow it. It is up to the superintendent to determine which candidate is the most qualified for a position. Only after the superintendent makes that recommendation may the board vote on the hiring of that individual.