Voting Issues for Boards
of Education
____________________________________________
NJASBO Annual Spring
Conference
The Borgata, Atlantic City
June 8, 2017
Voting Issues for Boards of
Education
Issues to be Considered
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Participation – Who can, Who can’t?
Level of vote required
Doctrine of Necessity
Abstentions
Miscellaneous Issues
Voting Issues for Boards of
Education
Participation in Voting
Who Can?
Who Can’t?
School Official Ethics
• School Ethics Act – N.J.S.A. 18A:12-21
• Nepotism Regulation –
N.J.A.C. 6A:23A-6.2
• N.J.S.A. 18A:12-2 – Conflict of Interest
Collective Negotiations
Participation
Collective Negotiations Prohibitions
Board Member or School Administrator
with a “relative” or “other” who is an employee
in the school district
• in the bargaining unit of the contract under negotiations
• supervised by employees in the unit
• not in the unit, but terms of employment linked to unit, or
• board member’s endorsement by the union in election
immediately preceding negotiations
CANNOT SERVE ON NEGOTIATIONS TEAM OR
PARTICIPATE IN PLANNING OF NEGOTIATIONS
CANNOT VOTE ON THE CONTRACT
Collective Negotiations Prohibitions
"Relative" – individual's spouse, civil union
partner…domestic partner…, or the parent,
child, sibling, aunt, uncle, niece, nephew,
grandparent, grandchild, son-in-law, daughterin-law, stepparent, stepchild, stepbrother,
stepsister, half-brother or half-sister, of the
individual or of the individual’s spouse, civil
union partner or domestic partner, whether the
relative is related to the individual or the
individual’s spouse, civil union partner or
domestic partner by blood, marriage or
adoption.
Collective Negotiations Participation
School Ethics Commission
N.J.S.A. 18A:12-24 (b)
No school official shall use or attempt to
use his official position to secure
unwarranted privileges, advantages or
employment for himself, members of his
immediate family or others.
Collective Negotiations Participation
N.J.S.A. 18A:12-24 (b) “Others” In-District
• A03-13 – Brother-in-law
• A22-13 – Father-in-law
• A10-14 – 1st Cousin
• A15-13 – Cohabitating partner
• A19-13 – Teacher town council member, board members
municipal employees
• A09-15 – Niece, A16-15 – Daughter, Wife, Aunt
• A19-15 – Niece, Spouse’s Uncle, Son, 1st Cousin
• A25-15 – Spouse, Relative
• A15-16 – Ex-Spouse
Collective Negotiations Participation
N.J.S.A. 18A:12-24 (b) “Others” In-District
• A25-15 – Board members with “relative” or
“other” employed in-district, members of a local
union or receive benefit from CBA, are deemed
conflicted under the School Ethics Act; all union
matters and all aspects of collective negotiations
process, including voting on the collective
bargaining agreement.
See A10-14, A11-15, A16-15, A19-15, A15-16
Collective Negotiations Participation
School Administrator Technical
Information Exception
• A22-16 – A conflicted school administrator may
serve as a technical resource to the negotiating
team and provide technical information
necessary to the collective bargaining process
when no one else in the school district can
provide that information; not full participation.
Collective Negotiations Participation
Board Member or School Administrator with
themselves, a “relative” or “other,”
an employee in another school district
• If the Board Member is employed in another
district and is a member of a bargaining unit
represented by a similar state-wide union,
CANNOT SERVE ON NEGOTIATIONS TEAM
CANNOT PARTICIPATE IN ANY ASPECT OF
NEGOTIATIONS
CANNOT VOTE ON THE CONTRACT - $
Collective Negotiations Participation
Board Member or School Administrator with a
“relative” or “other” who is an employee in
another school district
• If the Board Member or School Administrator has an
immediate family member in the household, who is
employed in another school district and is a member
of a bargaining unit represented by a similar statewide union, per se conflict
CANNOT SERVE ON NEGOTIATIONS TEAM
CANNOT PARTICIPATE IN ANY ASPECT OF
NEGOTIATIONS
CANNOT VOTE ON THE CONTRACT - $
Collective Negotiations Participation
Immediate Family Member
• N.J.A.C. 6A:23A-1.2 – spouse,
civil union partner, domestic partner,
or dependent child residing in household
• State Conflict of Interest Law – spouse,
child, parent, sibling residing in household
Collective Negotiations Participation
Board Member or School Administrator with a
“relative” or “other” who is an employee in
another school district
• If the Board Member or School Administrator has a
“relative” or “other” outside the household, who is
employed in another district and is a member of a
bargaining unit represented by a similar state-wide
union; AND
• If the “relative” or “other” is an NJEA or LEA officer;
leadership role in the union or district; same time
contract negotiations; building “rep”
CANNOT SERVE ON NEGOTIATIONS TEAM
CANNOT PARTICIPATE IN ANY ASPECT OF NEGOTIATIONS
CANNOT VOTE ON THE CONTRACT - $
Collective Negotiations Participation
N.J.S.A. 18A:12-24 (b) “Others” Out-of-District
•
A25-15 – Board members with out-of-household
“relative” (sister) member of the same statewide union in
another school district does not per se violate the Act by
participating in negotiations or vote on the LEA contract;
must also have heightened union involvement. Spouse
absolute bar.
NJEA or LEA officer; negotiations team; leadership
role in union or district; same time negotiations; building
representative
A11-15, A13-15, A16-15, A19-15, A40-15 (administrator)
Collective Negotiations Participation
N.J.S.A. 18A:12-24 (b) “Others” Out-of-District
•
A13-15 – Board member, employed in another school
district as a supervisor, member of NJPSA affiliate
union. No affiliation with NJEA. Board member may
negotiate and vote on in-district NJEA contract when
there is absolutely no linkage, in either district, between
the respective NJEA affiliates and the NJPSA
administrators union, which represents the board
member.
Collective Negotiations Participation
NJEA – Out of District Conflicts
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A13-13 – Board member employee in special
services school district, Board member NJEA field
representative
•
A09-14 – NJSFT/AFT similar to NJEA – share
common traits and common goals
•
A34-14 – Board member 26 year NJEA member,
20 year union president, retired NJEA employee;
receives NJEA health benefits, conflicted in
negotiations
Collective Negotiations Participation
NJEA – Out of District Conflicts
•
A26-15 – Board member, retired district employee,
President of local NJEA affiliate, conflicted; union
activity, negotiations and votes, first term.
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A24-16 – Board member, retired teacher from receiving
district, president and negotiator for local NJEA affiliate,
not conflicted for negotiations. Retired for 15 years,
member of NJEA retiree group. No other conflict
presented. Consider NJEA retiree benefits.
Personnel Issues
CSA/Supervisor/Principal
Personnel Issues
CSA/Supervisor/Principal
• Board members may not participate in
the hiring of a new CSA, supervisor or
principal, if they have a “relative” or
“other” who is an employee in the
school district who would be directly or
indirectly supervised by the new hire.
Personnel Issues
CSA/Supervisor/Principal
• Board members may not participate in
any personnel decisions involving a
CSA, principal, or supervisor who
directly or indirectly supervise the
board member’s “relative” or “other”
who is employed in the school district.
Personnel Issues
CSA/Supervisor/Principal
N.J.S.A. 18A:12-24 (b) “Others” In-District
• A03-13 – Brother-in-law
• A15-13 – Cohabitating partner
• A10-14 – 1st Cousin
• A22-13 – Father-in-law
• A08-14 – Stepdaughter, Stepdaughter-in-law, nephew
• A16-15 – Daughter, Wife, Aunt, “Relative”
• A19-15 – Niece, Spouse’s Uncle, Son, 1st Cousin
• A25-15 – Spouse, paraprofessional
• A15-16 – Ex-spouse
Personnel Issues
CSA/Supervisor/Principal
• A05-15 – Board members with spouse, board
member with brother employed in district; no
vote on motion to advertise for CSA, hiring of
selection agency, criteria, job description, search
committee, evaluation and contract discussions
post-hire, no closed session attendance, not
privy to closed session minutes until they
become public.
Personnel Issues
CSA/Supervisor/Principal
N.J.S.A. 18A:12-24 (b) “Others” In-District
•
A19-15 – Board members with nieces, spouse’s uncle,
full time employees and son, full-time student, part-time
summer substitute, as “relatives” are “others”; may not
participate in any matter involving the relative’s
employment or supervision including employment
matters with superintendent and supervising
administrators.
Reaffirm A10-14 1st Cousin – Other
Spouse’s cousin’s daughter – no conflict
See A25-14, A30-14, A25-15
Doctrine of Necessity
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A quorum of the board is in conflict
There is a pressing public need for action
No alternative forum which can grant relief
Body is unable to act without the conflicted
members taking part
Allen v. Toms River Regional Board of Education
233 N.J. Super. 642 (Law Div. 1989)
Doctrine of Necessity
School Ethics Commission Resolution on
Adopting the Doctrine of Necessity
February 25, 2003
• Board states publicly that it is invoking the
doctrine, the reason for doing so and the
specific nature of the conflicts of interest.
• Board reads the resolution at a regularly
scheduled public meeting, post the notice for
30 days and provide the SEC with a copy.
Doctrine of Necessity
Common Areas of Application
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Voting on collective bargaining agreement
Participating on negotiations team
Superintendent search
Superintendent evaluation
Vineland Board of Education
SEC Decision, Commissioner Decision
Sending Representatives on
Receiving Boards of Education
N.J.S.A. 18A:38-8.1
• Tuition to be charged the sending district by
the receiving district; bill lists for the
purchase, operation or maintenance of
facilities, equipment and instructional
materials to be used in the education of the
pupils of the sending district;
• New capital construction to be utilized by
sending district pupils;
Sending Representatives on
Receiving Boards of Education
N.J.S.A. 18A:38-8.1
• Appointment, transfer or removal of teaching
staff members providing services to pupils of
the sending district, including any teaching
staff member who is a member of the
receiving district’s central administrative
staff; and
• Addition or deletion of curricular and
extracurricular programs involving pupils of
the sending district.
Sending Representatives on
Receiving Boards of Education
N.J.S.A. 18A:38-8.1
• Lincoln Park v. Boonton, Little Ferry v.
Ridgefield Park, Green v. Newton;
Commissioner 1997
• Bloomingdale v. Butler; Commissioner 2004
• Evans v. Atlantic City; Appellate Division
2008
Sending Representatives on
Receiving Boards of Education
S-3191 (Sweeney)
Extends voting rights of representatives of sending
districts on receiving district board of education
• Sending district pupils programs & services
• Budget, CBA, Individual employee contracts –
services to sending students
• Governance – president, vice president,
professional services (attorney), bylaws
Number of Votes Required
Board action requires a majority vote of the
members of the board constituting a quorum.
Common law rule in New Jersey and elsewhere
is that “a majority of a public body constitutes
a quorum.”
Barnert v. Paterson 48 N.J.L. 395 (Sup. Ct. 1886)
Meeting Quorum
Determination of quorum for meetings of
public body where one or more vacancies
exist
Attorney General Formal Opinion No. 3
(1991)
Meeting Quorum
Quorum remains unchanged regardless
of vacancies when Act prescribes:
• Specific minimum number of members
constitutes a quorum
• Majority of “all of the members”
• Majority of the “authorized
membership”
Meeting Quorum
Quorum is a majority of the actual current
membership after subtracting any
vacancies when:
• Act is silent
• Act establishes quorum as “ a majority
of the members”
Ross v. Miller 115 N.J.L 61 (Sup. Ct. 1935)
Meeting Quorum
N.J.S.A. 18A:12-15b
Vacancies in the membership of the board
shall be filled as follows:
…
b. By the county superintendent, to a number
sufficient to make up a quorum of the board, if
by reason of vacancies, a quorum is lacking;
Meeting Quorum
"Because the statutory provision, N.J.S.A.
18A:12-15b., insures that each local board of
education shall consist of a quorum of the full
membership under all circumstances, the
common law rule that a quorum shall consist of
a majority of the occupied seats, as stated in
Ross v. Miller, supra, does not apply.”
Beckhausen v. Rahway Bd. Of Ed.
1973 S.L.D. 167, 176
Meeting Quorum
What is Your Meeting Quorum?
• Your board of education has nine members
when fully constituted. You have two
vacancies on the board.
• Your board of education has seven members
when fully constituted. You have one sending
representative.
• Your five member board of education has two
members who have disqualifying conflicts for
negotiations. You will be voting on the CBA.
Voting Quorum
Your board of education has 9 members
when fully constituted, 2 vacancies and 3
members with relatives employed in the
school district.
• Appointment of staff; superintendent
• Approval of a collective bargaining
agreement
• Certifying tenure charges
• Approving the budget
Number of Votes Required
Supermajority Votes Established by the
Legislature
• Majority of the full/authorized membership of
the board
• Two-thirds of the full/authorized membership
of the board
• Three-quarters of the members present
NJSBA Board Voting Requirements
Number of Votes Required
Supermajority Votes
Board may not require supermajority vote
unless statute specifically provides;
thwarts the will of the majority to require
a greater vote than required by statute.
Matawan Teachers Assn v. Bd of Ed.
223 N.J. Super. 504 (App Div. 1988)
Number of Votes Required
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Hiring employees
Terminating employees
Adopting a budget
Approving a collective bargaining agreement
Approving board policy
Filling a board vacancy
Approving a reduction in force
Non-renewal of a teacher
Non-renewal of a superintendent
Number of Votes Required
Superintendent Non-renewal
N.J.S.A. 18A:17-20.1
Negron v. Bd. Of Ed. of South Plainfield
App. Div. Dkt. No. A-4406-10T1 December 3, 2012
Extension of contract
Caffrey v. Bd. of Ed. Of Perth Amboy
Commissioner Dkt. No. 122-5/12 May 8, 2012
Administrative Leave
Abstentions
How to Count Abstentions
Russell Weiss, Jr., Esq. and Donna M. Kaye Esq.
Mount v. Parker 32 N.J. 341 (Sup. Ct. 1867)
• Abstentions may not be counted as affirmative votes,
if, without the abstentions, there is not a sufficient
number of votes for passage as required by a
specific statute.
• Abstention may not be counted as an affirmative vote
where the abstaining person states her desire that it
not be counted with the affirmative votes.
Abstentions
How to Count Abstentions
Russell Weiss, Jr., Esq. and Donna M. Kaye Esq.
• The vote of a person who abstains due to a conflict
of interest may not be counted with the affirmative
votes.
• Best practice – boards should adopt policies which
state that abstentions shall not be counted as a yes
or no vote; they should be non-votes.
Abstentions
New Jersey Law Revision Commission
Effect on Abstentions
Final Report April 2011
• Member shall not be counted as voting either
for or against the matter
• If the member is legally entitled to vote and
has not recused herself, the member shall be
deemed present for the purpose of
determining a quorum
Abstentions
New Jersey Law Revision Commission
Effect on Abstentions
Final Report April 2011
• If the member is not legally entitled to vote
because of conflict of interest or otherwise
has recused herself, the member shall not be
counted as present for the purpose of
determining a quorum.
Abstention is neither an affirmative nor a
negative vote
Miscellaneous Voting Issues
• Proxy Voting
• Remote Voting
• Paper Ballots / Secret Ballots
• Voting Sequence – Who Votes First?
Miscellaneous Voting Issues
• Closed Session – Straw Poll
In Re Cole 194 N.J. Super. 237 (App. Div. 1984)
• Closed Session Voting – Tenure
charges and ?
• Voting for President and Vice President
QUESTIONS