26 th Annual Educational Policy and School Law Seminar New Jersey’s School Ethics Act

1. 26th Annual Educational Policy and School Law Seminar New Jersey’s School Ethics Act Presented by Philip W. Nicastro, Esquire Strauss Esmay Associates, LLP School Policy & Regulation Consultants 1886 Hinds Road – Suite 1 Toms River, New Jersey 08753 732-255-1500

2. “School Ethics Act” N.J.S.A. 18A:12-24 - Prohibited Acts 18A:12-24.1 - Code of Ethics for School Board Members N.J.S.A. 18A:12-27 - School Ethics Commission N.J.A.C. 6A:32-3.2– Requirements for the Code of Ethics for School Board Members and Charter School Board of Trustees Members. Discussion, adopt policy and procedures in understanding Code of Ethics, provide documentation that Board members receive and review Code of Ethics & sign acknowledgement

3. Strauss Esmay Associates’Policy Guide - 0142Board Member Qualifications, Prohibited Acts, and Code of Ethics • Qualification of Office • Definitions – N.J.S.A. 18A:12-23 • Prohibited Acts – N.J.S.A. 18A:12-24.a through k • Board Member Code of Ethics – N.J.S.A. 18A:12-24.1 a through j • Requirements for Code of Ethics – N.J.A.C. 6A:32-3.2

4. Definitions • N.J.S.A. 18A:12-23 • “Administrators” - school administrator, principal, SBA, or position or supervisor that makes recommendations on hiring and purchasing • “Board Member” – person holding membership on Board of education by election or appointment • “Business” – corporation, partnership, firm, enterprise, etc. • “Member of immediate family” – spouse or dependent child of a school official residing in same household • “Relative” – spouse, natural or adopted child, parent, sibling of school official • “School official” – Board member

5. Prohibited Acts • N.J.S.A. 18A:12-24.a. through k. • No school official or immediate family member may have interest in business organization or engage in business that is in substantial conflict with proper discharge of duties • No school official use or attempt to use position to secure unwarranted privileges, advantages, or employment for himself or others • No school official shall act in official capacity in any matter where he/she has an interest or direct or indirect financial involvement that might reasonably impair judgment or matter that creates some personal benefit • No school official shall undertake any employment or service, compensated or not which would reasonably expect to prejudice judgment

6. Prohibited Acts • N.J.S.A. 18A:12-24.a. through k. • No school official, immediate family member or business organization in which he has interest shall accept anything of “value” for purpose of influencing, directly or indirectly, discharge of duties (campaign contribution exception) • No school official shall use or allow to be used office or employment or information not available to the public for purpose of financial gain to self, immediate family members or business organization • No school official or business organization in which he has interest shall represent any person or party other than Board against the Board

7. Board Member Code of Ethics • N.J.S.A. 18A:12-24.1 a. through j. • Legislated Code of Ethics for Board members • 10 requirements for all Board of Education members • Uphold and enforce rules and laws; confine responsibilities to policy making; not administer; hold confidential, independent judgment; appoint best qualified; and support and protect school personnel in proper performance of their duties • Board members must refer all complaints to the Chief Administrative Officer and act on complaints at public meetings only after failure of administrative solutions

8. Board Member Code of Ethics • N.J.A.C. 6A:32-3.2 – Requirements For Code of Ethics • Board must discuss School Ethics Act and Code of Ethics at a regularly scheduled public meeting annually • Board must adopt policy and procedures for the training of Board members regarding School Ethics Act and Code of Ethics • Board Members must sign an annual acknowledgement the Code of Ethics was received and reviewed and Board Member will become familiar with Code of Ethics • District administration must maintain copies of all signed acknowledgements

9. School Ethics Commission Responsibilities • Issue Advisory Opinions • Receive Complaints • Receive and Retain Disclosure Statements • Conduct Investigations • Hold Hearings and Compel Witnesses • Role of The Commissioner – Limited to the Recommended Sanction of the SEC

10. School Ethics Commission Advisory Opinions and Decisions &Commissioner and Court DecisionsThe School Ethics Acts &Board Member Code of Ethics All decision summaries are available in the New Jersey School Digest using ELANOnline.

11. SelectedSchool Ethics DecisionsReported Prior to May 2006

12. Board Member Disqualified from Serving on Board Due to Spouse’s Legal Complaint Against Board Seeking Reinstatement to Position in District • The Commissioner of Education affirmed Administrative Law Judge’s decision indicating Board Member could not serve on Board because his spouse had a pending complaint against the Board to be reinstated to a coaching position in the district • ALJ indicated husband had at least an indirect interest in his spouse’s damage claim against the Board. Commissioner concurs. See Hawthorne Board of Education v. Taliaferro, 94 N.J.A.R. 2d (EDU) 197, 30 Dec. 93

13. Board Member in Conflict With Tort Claim Notice Filed Against District • The Commissioner of Education concurred with an Administrative Law Judge’s decision that a Board Member was not eligible to be a member of the Board because the Board Member had a Tort Claim Notice against the school district on behalf of her two minor children. • Tort Claim Notice is litigation. See Board of Education of the Borough of Berlin, Camden County v. Charlotte Lee, DKT. NO. 143-5/01, Commissioner of Education, 14 June 02.

14. Association Endorsed Candidates Participating & Voting on Association Contract • The School Ethics Commission issued an Advisory Opinion that Board members most recently elected to the Board of Education would violate the School Ethics Act if they were to participate in negotiations and vote on the collective bargaining agreement with the Association based on the Association’s endorsement of their candidacy to the Board of Education. • Board members elected the previous year with similar support from the Association would be permitted to participate and vote. Advisory Opinion A13-02,School Ethics Commission Decision, 02 December 2002

15. Board Member Would Violate Act by Voting for Board Attorney Who Performed Personal Work for Board Member for a Fee • The School Ethics Commission (SEC) issued an Advisory Opinion that a Board Member would violate N.J.S.A. 18A:12-24(c) if the Board Member participates in discussions and votes on a Board Attorney reappointment and payment of Board Attorney bills if the attorney prepared a simple Will and Power of Attorney for the Board member who paid the attorney the usual and customary fee for the preparation of the documents. See Advisory Opinion A03-01, New Jersey School Ethics Commission, 24 April01.

16. Board Member Candidate with Claim Against Board not Disqualified Until Elected • Commissioner of Education held the statutory prohibition barring a board member’s interest in a claim against the Board does not apply to candidates running for the Board. See Rancocas Valley Regional Board of Education of the Borough of Berlin v. Dougherty, Commissioner of Education, unreported decision, 1 April 81.

17. Board Member Removed for “Acting” as Superintendent • Board member • Brought SBA candidate to Board without Superintendent’s recommendation • Gave work directly to district staff • Ordered Rice Notice be provided to 2 employees who were terminated by Board at Board meeting • Hired technology staff person without consideration to Superintendent • Told other staff the Superintendent’s contract would not be renewed; etc. • The School Ethics Commission recommended removal of the board member for violating the Code of Ethics and Commissioner affirms SEC decision. See In the Matter of Julia Hankerson, C36-02, New Jersey School Ethics Commission, 24 April 03.

18. Board Member Violates Act by Directing and Comments to Staff • Board member directs staff member to remove names from agenda that were recommended by Acting Superintendent. • Board member then tells person he believed were removed from the agenda that they were not appointed. • School Ethics Commission concludes Board member violated Act and removal from Board is appropriate penalty. Commissioner concurs. See In The Matter of Remond Palmer, Asbury Park Board of Education, Monmouth County, DKT. NO. 353-10/04, Commissioner of Education, 12 November 2004.

19. Board Member Voting on Contracts • Board Member or their immediate family member is a member of same association in New Jersey, but not in District: • Board Member Not Participate in Collective Bargaining Process • Board Member Not Serve on Negotiations Committee • Board Member Only Apprised of Terms of Memo of Agreement after Agreement Reached • Board Member May Vote During Public Meeting

20. Board Member Voting on Contracts • Board Member with immediate family member belonging to association within district: • Board Member shall not participate in any aspect of negotiations process - no voting • Board Member Only Vote In the Event of The Doctrine of Necessity

21. Board Member Voting on Contracts “Relatives” (not immediate family member) Belonging To Association Within District • Advisory Opinion A16-00 - Appears to Prohibit Board Member’s Participation in Negotiations Process • SEC - Involvement is personal when relationship could be perceived by public as being predominant to the best interest of district • Board Member Only Vote In the Event of The Doctrine of Necessity

22. Board Member Disqualified From Board For 504 Appeal Against District • SEC Advisory Opinion advised Board member does not have substantial conflict if they have ADA 504 appeal against district • ALJ concurs with SEC indicating Board members not prohibited from representing themselves, etc. • Commissioner rejects ALJ decision and holds Board member elected to pursue a legal claim against board alleging violation of his child’s educational rights and dual interest precludes board membership. • Commissioner orders removal from Board or abandon claim Note: Modified in Subsequent New Jersey Supreme Court Decision See Board of Education of the City of Sea Isle v. William J. Kennedy, DKT. NO. 62-3/05, Commissioner of Education, 30 June 2005.

23. Board Member Removed From Board For Multiple Flagrant Ethics Violations • Board member – • signed checks not authorized by Board to company that was owned by husband • voted for contract with company owned by brother-in-law that employed her husband and son • voted for bill lists that included her husband’s company • completed incomplete financial disclosure form • SECindicated multiple, flagrant violations of the Act and recommended Commissioner impose penalty of removal • Commissioner ordered Board member removed See In The Matter Of Rose L. Funches, Gateway Charter School Board of Trustees, Hudson County, DKT. NO. 260-9/05, Commissioner of Education, 2 November 2005.

24. Vocational School Supt. Violates Act When As ESC Board Member Votes On Contract To Vocational School • Interim Superintendent of ESC recommends contract with county vocational school for computer services • Vocational Superintendent on ESC Board and votes for contract • SEC determines the vocational Superintendent does not have direct financial involvement in the contract however had an indirect financial involvement that might reasonably be expected to impair her objectivity or independence of judgment and recommend reprimand – Commissioner concurs See In The Matter Of Diana Lobosco, Passaic County Educational Services Commission, Passaic County, DKT. NO. 364-12/05, Commissioner of Education, 10 January 2006.

25. Ethics Act Violated When Board Member Acts As Administrator • Board member goes directly to guidance office to obtain SAT score information and guidance secretary provided information based on Board member’s position • In addition, while in the school building to inspect lockers, Board member instructed district employees to provide more supervision when pupils were present • SEC finds Board member violated N.J.S.A. 18A:12-24(d) of Code of Ethics “not to administer schools…but see they are run well” in directly requesting information and directing staff • SEC finds Board member violated N.J.S.A. 18A:24.1(j) by not referring complaints to Superintendent • SEC recommends censure – Commissioner concurs See In The Matter Of William Lahn, Delsea Board of Education, Gloucester County, DKT. NO. 383-12/05, Commissioner of Education, 23 January 2006.

26. Board Member Would Violate Act If Assigned As District’s Resource Officer • Board member is member of police department and requests advisory opinion if assigned to district as SRO • SEC advises N.J.S.A. 18A:12-28(b) would be violated because no board member may… engage in business … professional activity… which is in substantial conflict with public interest • SRO is involved in day to day operation of school, which would create substantial conflict with their role as board member because of entanglements with staff, pupils and parents See Advisory Opinion A 31-05, School Ethics Commission, 10 February 2006.

27. Board President Violates Act For Confronting Community Member • Community member asks Board member a question during public session and President stopped Board member from answering question • Before going into executive session, Board President confronts community member and testimony indicated President was aggressive, screamed, and threatened community member • Board President denies she touched community member and indicated she said question was cruel and uncalled for • SEC found Board President took private action violating N.J.S.A. 18A:12-24.1(e) and impose two month suspension - Commissioner concurs See In The Matter of John Talty and Sharon Kight, Brick Township Board of Education, Ocean County, DKT. NO. 51-1/06, Commissioner of Education, 01 March 2006.

28. SelectedSchool Ethics DecisionsReported May 2006 – April 2007

29. Board Member Expressing Personal Opinion To Press • To avoid violation of School Ethics Act: • Board member must remember authority rests with Board • Board member must ensure letter does not indicate it is being written on behalf of Board • Board member must indicate letter written as citizen and not Board member • Board member must write or speak accurately • Board member must maintain confidential of all matters if disclosed would needlessly injure schools See Advisory Opinion A02-06, School Ethics Commission, March 10, 2006.

30. Board Member Meeting With Association Without Superintendent’s Knowledge • Board President and Vice-President admitted at public meeting with Association President and Vice President of Teacher’s Association without Superintendent’s knowledge • Board President indicated nothing was determined at meeting and no promises were made and Board President and Vice-President just listened to concerns • SEC indicated meeting like this without Board authority or knowledge of Supt. violates Ethics Act See In the Matter of Colleen Gartland and Carmine Picardo, West Essex Board of Education, Essex County, DKT. NO. 95-3/06, Commissioner of Education, 12 June 2006.

31. Minutes Indicate Board Member’s Relative Not Discussed In Executive Session • Ethics complaint alleges Board member’s attendance in Executive Session while his brother was being discussed for position violated Act because presence had great bearing on selection of brother for position • SEC determines nothing in the record that indicated matter was discussed in Executive Session or that Board Member exerted any influence to secure hiring See Walter E. Dority, Jr. v. Charles Palumbo, Black Horse Pike Regional School District, Camden County, DKT. NO. C02-06, School Ethics Commission, 25 July 2006.

32. Board Member Does Not Violate Act By Voting For His Political Club’s School Use • Complaint alleges Board Member violated Act voting to allow Township Republican Club to hold meeting in district’s schools • Board Member was unpaid, Club VP and did free computer work for Republican Women Organization • SEC finds Board Member had no “interest” under Act and no direct or indirect financial involvement to impair objectivity • SEC indicates Board Member’s actions were as private citizen and complaint dismissed See Richard Bombardier v. Richard Ciullo Berkeley Township Board of Education, Ocean County, DKT. NO. C36-05, School Ethics Commission, 25 April 2006.

33. Board Member Not Violate Act/Code of Ethics Discussing Parental Educational Concerns • Complaint alleges Board Member violated Act trying to administer schools, breached issues of confidentiality, and did not support and protect school personnel with meetings and e-mails with school personnel • SEC finds Board Member was discussing concerns regarding daughter’s performance and her concerns in math department • SEC dismisses Complaint as Complainants failed to present factual evidence of violations See John O’Breza, et al v. Susan Badaracco, Cherry Hill Township Board of Education, Camden County, DKT. NO. C01-06, School Ethics Commission, 25 July 2006.

34. Board Member’s Involvement In Both Campaign And Vote Does Not Violate Act • Board Member involved in 2004 school board election as Chairperson and Treasurer • March 2004 Board Member made motion to accept Superintendent’s recommendation to award two-year insurance contract to broker • Later in March son of the broker owner contributed four $175 checks to school campaign • SEC finds Board Member did not have “interest” in broker’s firm and insufficient evident Board Member’s actions based on contribution See Curtis M. Lackland v. Doris Graves, Pleasantville Board of Education, Atlantic County, DKT. NO. C04-05, School Ethics Commission, 25 April 2006.

35. Candidate for the Board Not Considered “Board Member” For Code of Ethics • The complainants alleged the respondent violated Code of Ethics for Board Members • The respondent argued the Complaint was without merit because he was not a Board member at the time of the alleged conduct and was not a school official subject to the jurisdiction of the School Ethics Commission • The SEC concluded it did not have jurisdiction over the respondent at the time of the alleged conduct because at the time he was not a school official. See Susan R. Gorman and Ralph Splendorio v. Scott Sarno, Barnegat Board of Education, Ocean County, DKT. NO. C27-06, School Ethics Commission, 24 October 2006.

36. Superintendent’s Position Not Considered “Board Member” For Ethics Act/Code of Ethics • Complainants allege Superintendent violated sections of the school Ethics Act and Board Member Code of Ethics • Superintendent argued “Superintendent” position does not fit under definition of “board member” but under “administrator” definition of School Ethics Act • School Ethics Commission determines definitions of “board member” and “administrator” make it clear Superintendent is not considered member of the Board for School Ethics Act and Board Member ode of Ethics See Lisa A. Doren, et al v. Renae LaPrete, Hazlet Board of Education, Monmouth County, DKT. NO. C11-06, School Ethics Commission, 26 September 2006.

37. Principal Does Not Violate Act By Directing Fundraising Funds To PTA • Complainant alleges Principal violated School Ethics Act because Principal was officer of PTA and Principal directed funds from school dance recital to PTA treasury • Complainant testified she never gave permission for her daughter to perform in a “fundraiser” for PTA as PTA did not expend any funds for event • Complainant alleges Principal used his position to secure unwarranted advantage for himself… or others… • SEC finds the event was a PTA event and could not fimd Principal used his position to secure unfair advantage for himself or PTA See Virginia Jeffries v. Henry Hamilton, East Orange Board of Education, Essex County, DKT. NO. C13-06, School Ethics Commission, 19 December 2006.

38. Board Member Requesting Submission Of Resume Does Not Violate Act • Board member was chairperson of Personnel Committee and Complainant alleged Board member told complainant to “give me your resume, there is a fifth grade position opening up.” • Complainant alleged Board member made statement before the position was opened and the Board member violated Ethics Act for not holding matters confidential because she knew in advance the person was going to get fired • SEC finds Board member did not violate Act as Board member did not mention any specific job or person or why the position was opening up See Kristen Corby v. Kelly-Anne McDonnell, Green Township Board of Education, Sussex County, DKT. NO. C18-06, School Ethics Commission, 28 November 2006.

39. Advisory Opinion On Board Members’ Involvement In Hiring Superintendent • Board member’s spouse is a substitute custodian • SEC advises since spouse is not permanent employee Board member’s involvement in employment issues related to new Superintendent would not positively or negatively impact the employment of Board member’s spouse. SEC advised Board member may participate: • in search for new Superintendent • in the interview process • in the contract negotiations • in the hiring of the new Superintendent • and in employment issues related to the new Superintendent • Board member should abstain from voting on the hiring of substitute custodians

40. Advisory Opinion On Board Members’ Involvement In Hiring Superintendent • Board member’s mother was a full-time aide and brother was a Media Services Coordinator • Mother and brother are not “immediate family members”, but are “relatives” under NJSA 18A:12-23 • SEC advises Board member may participate: • in the interview process • in search for new Superintendent • in the contract negotiations • in the hiring of the new Superintendent • However, Board member may not participate if either his mother or brother have some familiarity with candidate because candidate directly or indirectly supervised them in the district. • Board member may not participate in employment issues related to new Superintendent once hired as participation could have impact on mother’s or brother’s employment in district

41. Advisory Opinion On Board Members’ Involvement In Hiring Superintendent • Board member’s wife and mother-in-law work as aides • SEC indicates mother-in-law is not “relative” under NJSA 18A:12-23 so Board member could not violate Act in relation to mother-in-law • However, SEC indicates because wife works in the district, the Board member may participate: • in the interview process • in search for new Superintendent • in the contract negotiations • in the hiring of the new Superintendent • However, Board member may not participate if his wife has some familiarity with candidate because candidate directly or indirectly supervised them in the district. • Board member may not participate in employment issues related to new Superintendent once hired as participation could have impact on wife’s employment in district

42. Advisory Opinion On Board Members’ Involvement In Hiring Superintendent • Board member’s daughter-in-law is a teacher • Daughter-in-law is not a “relative” under NJSA 18A:12-23 so Board member could not violate Act in relation to daughter-in-law • SEC advises Board member may participate: • in the interview process • in search for new Superintendent • in the contract negotiations • in the hiring of the new Superintendent • Board member may participate in employment issues related to the new Superintendent See Advisory Opinion A23-06, School Ethics Commission, 28 November 2006.

43. SelectedSchool Ethics DecisionsReported May 2007 – April 2008

44. Board Member Violates Act With E-Mail to Superintendent Involving Spouses Work Issue • Board member sends e-mail to Superintendent critical of the handling of a matter involving his wife, a teacher in the district and sent a copy to the entire Board • SEC determines the following violations: • N.J.S.A. 18A:12-24(b) – attempting to secure an unwarranted privilege by defending wife • N.J.S.A. 18A:12-24(c) – acted in official capacity where he had direct financial involvement • N.J.S.A. 18A:24.1(c) – failed to confine his Board action to policy making • N.J.S.A. 18A:24.1(i) – failed to protect and support Superintendent when he sent e-mail to other Board members critical of Superintendent • SEC/ALJ – three month suspension – Commissioner – one month See In The Matter of David Kanaby, Hillsborough Board of Education, Somerset County, DKT. NO. 202-7/07, Commissioner of Education, 10 September 2007.

45. Board and Board Member Equally Cupable in Board Member Conflict at Time of Election • Board member’s wife has workers’ comp claim pending while Board member elected to Board – 4/06 • 5/3/07 claim is withdrawn and 5/8/07 Board files petition with Ethics Commission claiming Board member was conflicted at the time of election and should be removed from Board • ALJ concludes Board member was conflicted and should be removed from Board • Commissioner concludes residents best served by considering Board’s petition and Board member curing problem as if they occurred same time – re-administer oath and Board member stays on Board See Board of Education of The Township of Barnegat, Ocean County, v. Robert A. Houser, DKT. NO. 128-5/07, Commissioner of Education, 30 July 2007.

46. Doctrine Of Necessity To Appoint Superintendent • A majority of the Board members worked for a company where a Superintendent candidate’s brother was second in command • Board did not seek advisory opinion from SEC and upon advice from Board Attorney invoked the doctrine of necessity • Complainant argued process was a fraud when candidate received position • SEC indicates Board used search firm and no evidence to support the process was tainted and doctrine of necessity used even if a conflict existed See James Thomas v. Melissa Rodriguez, Janita Hutchinson, Stephen Cooper, Harold Harris and Lisa Feliciano, Woodbine Board of Education, Cape May County, DKT. NO. C57-06, School Ethics Commission, 26 June 2007.

47. Board Member Critical of District Practices Does Not Violate Ethics Act • Complaint alleges Board member acted unethically at Board meeting with comments and changes the Board member believed should be made in district’s curriculum • Complaint alleges Board member violated Ethics Act by disrupting Board Meeting questioning every purchase • Complaint alleges Board member violated Ethics Act by surrendering his judgment by his involvement in political group • SEC found Complainant provided no evidence to support the allegations and dismissed the Complaint See David Zukowski v. Raymond A. Delbury, Sussex-Wantage Regional Board of Education, Sussex County, DKT. NO. C61-06, School Ethics Commission, 26 June 2007.

48. No Evidence Board Member Disclosed Confidential Information Beyond Executive Session • Complainant alleges the Board President accused him in executive session of revealing confidential information from executive session • Complaint alleges Board President made insulting, slanderous and libel statements about in him in executive session • SEC found no evidence the Board President discussed this matter beyond the executive session, no names were mentioned in executive session and Board President only raised subject in executive session See Thomas H. Costa v. Loretta Rehmann, Hammonton Board of Education, Atlantic County, DKT. NO. C59-06, School Ethics Commission, 24 April 2007.

49. Board Member Censured For Speaking To Reporters, Etc., Before Going To Superintendent • Complaint alleges Board member acted on complaint before going to Superintendent by speaking to and showing photographs to a reporter about concerns • Complaint also alleged Board member violated Ethics Act when he treated a supervisor in a demeaning and harassing manner when the supervisor failed to provide information to the Board member when directly requested by the Board member • SEC finds Board member violated Ethics Act and censure should be penalty – Commissioner agrees See In The Matter of Raymond A. Delbury, Sussex-Wantage Regional Board of Education, Sussex County, DKT. NO.337-11/07, Commissioner of Education, 06 December 2007.

50. Board Member Violates Act By Participating In Selection Process If Any Candidate For Superintendent Indirectly Supervised Board Member’s Spouse In District • Board member’s spouse is a security guard in district evaluated by Assistant Principal, who reports to Principal, who reports to Director of Education, who reports to Superintendent • Board member asks if he would violate Ethics Act if he participates in search for new Superintendent • SEC advises Board member would violate Ethics Act by participating in search if Asst. Principal, Principal and/or Director of Education became candidate for position. See Advisory Opinion A30-07, School Ethics Commission, 18 December 2007.