The School Ethics Commission (SEC) recently determined that a board member who has an immediate family member or a relative employed in the district may not participate in the search, selection and/or vote for a new Superintendent or Chief School Administrator irrespective of whether there is an in-house candidate being considered for the position. In Carlos Martinez v. Francis Albolino, C45-11, two members of the Hackensack Board of Education had family members who were tenured teaching staff members in the district: one a spouse, an immediate family member as that term is defined by the School Ethics Act (SEA); and the other a daughter, a relative under the SEA. The Board commenced a search for a new Superintendent, which was coordinated by a representative of the New Jersey School Boards Association (NJSBA) who screened the applicants and placed them in categories according to whether they met the Board’s criteria and credentials. Based on the NJSBA representative’s analysis, the Board selected eight candidates to interview, including the Acting Superintendent, who previously served as the Board’s Assistant Superintendent. A complaint was filed with the SEC alleging that the respondent Board members violated the SEA by participating in discussions involving the Superintendent search and in the interviews of certain candidates including the Acting Superintendent.
The Commission recognized its previous advisory opinions, which permitted a board member whose immediate family member or relative is employed in the district to participate in the search for a new Superintendent, including the interview process for potential candidates and the hiring of the Superintendent, unless the immediate family member or spouse had some familiarity with a potential candidate because the candidate worked in the district. The Commission also recognized that it has never established a bright-line rule on the matter, which has caused confusion that has resulted in litigation and the unnecessary expenditure of board resources. Accordingly, the Commission determined that the respondent Board members did not violate the SEA. Nevertheless, the Commission noted that it has previously determined that a board member who has an immediate family member or relative employed in the district cannot participate in employment decisions involving the Superintendent once the Superintendent is hired because the board member will have at least a personal involvement creating a benefit, and may also have a financial involvement that might reasonably be expected to impair his or her objectivity. The Commission determined that those same concerns have the potential to taint the Superintendent’s pre-employment selection and hiring. As such, the Commission invalidated its previous decisions on this issue and determined that henceforth, a board member who has an immediate family member or a relative employed in the district may not participate in the search, selection and/or vote for a new Superintendent irrespective of whether there is an in-house candidate being considered for the position. The Commission specifically constrained its decision to the hiring of Superintendents and Chief School Administrators. The full text of the Commission’s decision is available at: http://www.nj.gov/education/legal/ethics/2009/C45-11.pdf. Administrators and school board members with questions should contact their solicitors. Will Donio, Chairman of the Education Law Group, and our education law group attorneys can be reached at 609-344-3161.