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Voting Issues for Boards of Education

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 Participation – Who can, Who can’t? Level of vote required Doctrine of Necessity Abstentions

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Voting Issues for Boards of Education

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  1. Voting Issues for Boards of Education NJASBO Annual Spring Conference The Borgata, Atlantic City June 8, 2017

  2. Voting Issues for Boards of Education Issues to be Considered • Participation – Who can, Who can’t? • Level of vote required • Doctrine of Necessity • Abstentions • Miscellaneous Issues

  3. Voting Issues for Boards of Education Participation in Voting Who Can? Who Can’t?

  4. 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

  5. Collective Negotiations Participation

  6. Collective Negotiations Prohibitions Board Member or School Administrator with a “relative” or “other” who isan 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 CANNOTSERVE ON NEGOTIATIONS TEAM OR PARTICIPATE IN PLANNING OF NEGOTIATIONS CANNOT VOTE ON THE CONTRACT

  7. 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, daughter-in-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.

  8. 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.

  9. 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

  10. 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

  11. 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 elsein the school district can provide that information; not full participation.

  12. 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 - $

  13. 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 state-wide union, perse conflict CANNOT SERVE ON NEGOTIATIONS TEAM CANNOT PARTICIPATE IN ANY ASPECT OF NEGOTIATIONS CANNOT VOTE ON THE CONTRACT - $

  14. 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

  15. 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 - $

  16. 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)

  17. 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.

  18. Collective Negotiations Participation NJEA – Out of District Conflicts 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

  19. 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. 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.

  20. Personnel Issues CSA/Supervisor/Principal

  21. 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.

  22. 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.

  23. 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

  24. Personnel Issues CSA/Supervisor/Principal • A05-15 – Board members with spouse, board member with brother employed in district; no vote on motion to advertisefor 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.

  25. Personnel IssuesCSA/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

  26. Doctrine of Necessity • 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)

  27. 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.

  28. Doctrine of Necessity Common Areas of Application • Voting on collective bargaining agreement • Participating on negotiations team • Superintendent search • Superintendent evaluation Vineland Board of Education SEC Decision, Commissioner Decision

  29. 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;

  30. 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.

  31. 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

  32. 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

  33. 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)

  34. Meeting Quorum Determination of quorum for meetings of public body where one or more vacancies exist Attorney General Formal Opinion No. 3 (1991)

  35. 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”

  36. 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)

  37. 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;

  38. 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.” Beckhausenv. Rahway Bd. Of Ed. 1973 S.L.D. 167, 176

  39. 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.

  40. 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

  41. 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

  42. 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)

  43. Number of Votes Required • 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

  44. 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

  45. 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.

  46. 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.

  47. 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

  48. 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

  49. Miscellaneous Voting Issues • Proxy Voting • Remote Voting • Paper Ballots / Secret Ballots • Voting Sequence – Who Votes First?

  50. 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

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