____________________________________________ Voting Issues for Boards of Education NJASBO Workshops Mt. Laurel and Rockaway December 9,11, 2014

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Voting Issues for Boards of Education

NJASBO Workshops

Mt. Laurel and Rockaway

December 9,11, 2014


Issues to be Considered

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


Participation in Voting

Who Can?

Who Can’t?

Collective Negotiations Participation

• 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


Board Member or School Administrator with a “relative” employed in the school district

• in the bargaining unit of the contract under negotiations

• 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 CANNOT PARTICIPATE IN PLANNING OF NEGOTIATIONS OR VOTE ON THE CONTRACT


Board Member or School Administrator with an “immediate family member” employed in another school district

• If the Board Member is employed in another district and is a member of a bargaining unit represented by the same state-wide union, or

• An “immediate family member” is employed in another district and is a member of a bargaining unit represented by same state-wide union

CANNOT SERVE ON NEGOTIATIONS TEAM

CANNOT PARTICIPATE IN PLANNING OF NEGOTIATIONS, CAN VOTE ON THE CONTRACT


"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.


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


DOCTRINE OF NECESSITY

• Voting on the negotiated contract

• Participation on the negotiations team

Personnel Issues

Hiring of Staff

The CSA may not recommend, nor the board approve, the initial hiring of

“relatives” of any board member or of the CSA.

Executive County Superintendent exception

N.J.A.C. 6A:23A-6.2

Personnel Issues

Hiring of Staff

• “Relative” definition – Accountability Regulations

• Substitute, student employee exception• Renewals, promotions, transfers• Can a person become a board member

if his/her relative is already working in the district?

Personnel Issues

Hiring of Staff

• Board members cannot vote on personnel decisions regarding relatives who work in the school district

• School Ethics Act definition of “relative” – spouse, child, parent, sibling

Personnel Issues CSA/Supervisor/Principal

• Board members may not participate in the hiring of the CSA if they have relatives working in the school district.


• Martinez v. Abolino, SEC 6/7/12 – internal, external candidates


• Board members may not participate in the hiring a new supervisor or principal if their relative works in the district and would be directly or indirectly supervised by the new hire….and there are internal candidates.



• Board members may not participate in any personnel decisions respecting a CSA, principal, or supervisor who directly or indirectly supervises their relative.



Emerging Issues• Board member employee in special services

school district

• Board member NJEA field representative

• Board member dating employee

• Cousin in district, negotiations with principals unit, contains direct supervisor


Emerging Issues

• Brother-in law custodian• Long-time personal relationship/cohabitation• Stepdaughter, stepdaughter-in-law, nephew• Cousin• Board member dating employee• Board member’s sister – per diem substitute

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;


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.


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

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)


Determination of quorum for meetings of public body where one or more vacancies

exist

Attorney General Formal Opinion No. 3 (1991)


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”


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)


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;


"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


Your board of education has nine members when fully constituted. You

have two vacancies on the board. What is the necessary voting quorum on:

• Appointment of staff• Approval of a collective bargaining

agreement• Certifying tenure charges• Approving the budget


Supermajority Votes Established by the Legislature

• Majority of the full membership of the board• Two-thirds of the full membership of the

board• Two-thirds of the authorized membership of

the board

NJSBA Board Voting Requirements


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)


• 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


Superintendent Non-renewalN.J.S.A. 18A:17-20.1

Negron v. Bd. Of Ed. of South PlainfieldApp. Div. Dkt. No. A-4406-10T1 December 3, 2012

Extension of contract

Caffrey v. Bd. of Ed. Of Perth AmboyCommissioner Dkt. No. 122-5/12 May 8, 2012

Administrative Leave


Superintendent Non-renewalN.J.S.A. 18A:17-20.1

Negron v. Bd. Of Ed. of South PlainfieldApp. Div. Dkt. No. A-4406-10T1 December 3, 2012

Extension of contract

Caffrey v. Bd. of Ed. Of Perth AmboyCommissioner Dkt. No. 122-5/12 May 8, 2012

Administrative Leave

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)


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.


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

Abstentions

How to Count AbstentionsRussell 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 AbstentionsRussell 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 AbstentionsFinal 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 AbstentionsFinal 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

Documents

____________________________________________ Voting Issues for Boards of Education NJASBO Workshops Mt. Laurel and Rockaway December 9,11, 2014