NJASA

Board President May Not Issue Rice Notices to Employees

Other than the Superintendent

The 2015-16 school year was a year marked by numerous important decisions and Advisory Opinions by the New Jersey School Ethics Commission. Many of these decisions helped clarify the roles of board members and superintendents with regard to hiring and employment decisions. Most notably, on January 26, 2016, the Commission issued Advisory Opinion A31-15 in which it stated that it “does not, (emphasis supplied) ... support Board members conducting interviews for positions below that of Superintendent.”[1]

The Commission also found that a board president has no authority to issue Rice notices to employees other than the superintendent.  In Cheng v. Rodas, West New York Board of Education,[2] board member Cheng filed a complaint against the board president, Rodas. In that case, Rodas admitted that he composed and delivered a Rice notice to the business administrator (BA) on November 10, 2014, and that he did not inform the superintendent or other board members.  Further, Rodas admitted that on December 8, 2014, he directed the board attorney to compose and deliver a second Rice notice to the BA, again without notifying the superintendent or any board members. 

In his defense, Rodas argued that he had the authority to take those actions under the Commissioner’s decision in Persi v. Woska.[3]  In that decision, the Commissioner determined that a board president could issue a Rice notice to the superintendent.  Rodas argued that based upon that decision, the board attorney opined that the board president was authorized and empowered to issue a Rice notice to other employees, including the BA.  

The Commission however, rejected Rodas’s argument and the board attorney’s opinion. The Commission noted that:

Under this theory, the Board President should then have the authority to issue a notice to any … employee of his choosing.  The Commission is concerned that extending this unilateral authority to a Board President to interfere with the employment of a BA or a custodian is the grant of unbridled power ripe for abuse, in violation of the School Ethics Act.[4]

It further stated that conducting one’s office in such a manner would violate N.J.S.A. 18A:12-24.1(c), (e) and (i) for acting beyond the scope of a board member’s authority, taking private action with the potential to compromise the board, and interfering with the proper performance of the employee’s duties.

Significantly, the Commission recommended that the decision in Persi v. Woska be modified to advise that such “authority lies with the president of a district board of education and a majority of the full membership of a district board of education.”[5]  Such a modification would be important, because it would recognize that the board must act as a committee of the whole, and that no individual power to take action is vested solely in the board president.

Finally, the Commission dismissed Rodas’s argument that the legal advice the board received insulated him from blame for his conduct. The Commission noted that “[e]ach Board member undergoes ethics training and each is responsible for his own ethical conduct.  That responsibility cannot be delegated or avoided.”  Rodas should have completed ethics training and, as an elected official, it is his duty “to act prudently and cautiously” so as not to compromise the board.[6]  Here, neither Rodas nor the board  attorney provided authority giving the board president the powers to issue Rice notices to employees.  However, if they were uncertain, then they should have filed a request for an Advisory Opinion with the Commission. As a result of the above, the Commission recommended that Rodas receive a reprimand.

It is important to note that this decision was rendered in September 2015, and no decision from the Commissioner has been rendered to accept or reject it as of yet.  So members are cautioned to check to see whether the Commissioner accepted this opinion before fully relying on it.  Nevertheless it raises three important issues.  First, the board president does not have unilateral power to determine which employees will receive a Rice notice and when.  Second, with respect to issuing a Rice notice to the superintendent, the authority rests with the full membership of the board.  Finally, school officials cannot rely solely on the advice of the board attorney in determining whether their conduct would violate the School Ethics Act.  When in doubt, the prudent course of action would be to seek an Advisory Opinion from the School Ethics Commission.

^[1] For more detailed analysis of this Opinion, see the Legal Corner, February 2016.

^[2] A58-14 (September 22, 2015).

^[3] C.# 260-14A (June 17, 2014). 

^[4] C58-14 at 9.

^[5] Id. at n.4 (emphasis added).

^[6] Id. at 10.