"Ethics Advisory Opinions Clarify What Constitute Conflicts of Interest"Throughout the last year, the New Jersey School Ethics Commission (SEC) has issued a number of Advisory Opinions that defined the familial and relative relationships that would require a school official to avoid participation in negotiations in his/her district. For example, on November 26, 2014, the SEC issued advisory opinion A43-14, which concluded that, where a superintendent resides with a non-dependent child who is employed in another district, the superintendent could not be involved in negotiations in the district where she is employed. In that case, the child was employed as a paraprofessional within the NJEA negotiations unit. Although the child declined membership in the local unit, she still paid 85% of the membership dues pursuant to the contract between that district and the local NJEA affiliate. In addition in A03-15, the SEC determined that, where a board member’s sister-in-law is a NJEA member who works in another district, that board member could not participate in negotiations in his/her own district. This decision was subsequently revised, and then removed from the list of Advisory Opinions approved for public release on the SEC web site; however, A43-14 remains a public decision.
These and other Advisory Opinions have resulted in chaos in many New Jersey districts. Some districts have reported an inability to obtain a quorum of board members, who have no conflicts, to participate in and vote on negotiations. In other districts, some or all of the key administrators had relatives and family members working in other districts, and were thus conflicted and unable to assist in negotiations.
Fortunately, multiple requests for Advisory Opinions were filed in response to the ensuing confusion. As a result, on October 27, 2015, the SEC issued three Advisory Opinions which, while not explicitly overruling the prior opinions, did help clarify and provide more specific guidance going forward.
The first of those opinions, A11-15, involved two board members who have relatives who are NJEA members employed in other school districts. For one board member, the relative in question was a first cousin; for the other, it was the first cousin of the board member’s spouse (referred to as a “first cousin-in-law”). The SEC acknowledged that there has been recent interest in out-of-district conflicts of interest for school officials under the School Ethics Act (“Act”) and therefore, the SEC determined to review the issue in greater depth to offer guidance.
Under N.J.S.A. 18A:12-22(a), the Act notes that board members must avoid conduct which is in violation of the public trust. The SEC stated that this means “that each set of circumstances are viewed from a perspective of what the reasonable members of the public might perceive as a board member’s attempt to benefit himself, his immediate family, or others, which includes relatives.”1 Under the Act, “immediate family” is defined as the “spouse or dependent child of a school official residing in the same household.”2 The term “others” is not defined by the Act; however, the SEC has construed this term broadly to include relatives, including those not specifically defined in the Act. While the Act defines a “relative” as the “spouse, natural or adopted child, parent, or sibling of a school official,”3 the Department of Education has a more expansive definition in the fiscal accountability regulations. Those regulations require each district to implement a nepotism policy that is consistent with N.J.S.A. 52:13D-21.2(d).4
Under that law, a “relative” is defined as including an “individual’s spouse or the spouse’s 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.”5 As a result, the SEC ruled that an individual who meets the above definitions will be considered an “other” under N.J.S.A. 18A:12-24(b). Therefore, a board member may not use his/her official position to secure unwarranted privileges, advantages or employment for any individual meeting the definitions of “immediate family member” or “other,” and must avoid the appearance of doing so.
Applying the above to the questions presented, the SEC advised that a board member may not participate in negotiations in his/her own district when a relative is the member of the bargaining unit of that same district.6 Further, the board member may not participate in negotiations when an immediate family member is a member of the same statewide union in another district.7 However, “without any evidence of additional circumstances,” the SEC opined that a board member who has a relative who is a member of the same statewide union in another district would not violate the Act if s/he were to participate in negotiations in his/her own district. Unless other facts are present, those relationships are too attenuated and any benefit would be too speculative to cause a conflict.
The SEC noted that the situation would be different if the activities of the relative involve contract negotiations at the same time as the board member’s own district’s negotiations. Another example given was if the relative were a leader of his/her own district’s union or negotiations team. However, based on the facts as presented, the SEC found there is no need for a board member to automatically recuse him or herself from negotiations when s/he has a relative that is part of an education association in another school district in New Jersey, unless other circumstances were present.
The SEC also analyzed seven separate familial relationships the same day when it issued A16-15. In that decision it found that with respect to board members who have relatives employed within their own school district, those board members could not be involved in negotiations with the local bargaining unit, nor could they be involved in the hiring or evaluation of the superintendent, or any other staff members who oversee the relative. This advice applied to a board member whose daughter sporadically works as a per diem substitute in the district, a member whose wife is a teacher and NJEA member in the district, member who has an aunt who is a teacher and NJEA member in the district, and a member whose wife and daughter are both NJEA members and who both work in the district. However, two members have relatives who are NJEA members who work in other districts (one has a sister, and the other has a daughter). Applying the same analysis as in A11-15, the SEC found that, without evidence of additional circumstances, the two board members with relatives that work in other districts could participate in negotiations in the district where they serve as board members.
In another Advisory Opinion released the same day, the SEC reviewed whether a board member who is employed in another school district as a supervisor may participate in negotiations in the district where he serves as a board member.8 In this case, the board member is a member of the New Jersey Principals and Supervisors Association, which is not affiliated with NJEA. Further, the local affiliates have no contractual relationship with each other. As such, absent additional facts, the SEC advised that the board member could participate in negotiations with the NJEA affiliate in the district where he serves as a board member.
These cases highlight the evolving and complicated definitions of familial relationships and conflicts of interests as they relate to board members. Because school administrators are also school officials within the meaning of the Act, each NJASA member is urged to review these decisions and determine whether you have an immediate family member or relative who is a member of an affiliate of a statewide education association, and whether that relationship would disqualify you from participating in your district’s negotiations. NJASA also advises that all affected members consult with NJASA attorneys, and the board attorney, for more specific advice and assistance.Endnotes
1 A11-15 (October 27, 2015) at 2.
2 N.J.S.A. 18A:12-23.
4 See N.J.A.C. 6A:23A-6.2(a)(1)
5 A11-15 at 2, citing N.J.S.A. 52:13D-21.2(d).
6 N.J.A.C. 6A:32A-6.2(a)(5).
7 N.J.A.C. 6A:23A-6.2(a)(6).8 A13-15 (October 27, 2015).