board governance – legal issues - New Jersey School Boards ...

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52. Settle v. Pennsville Bd. of Ed. and Pennsville EducationAssociation, 2001 S.L.D. (April 26). Commissioner is withoutjurisdiction to determine whether the board could consider agrievance filed by the association seeking the removal or disciplineof a board member for her involvement in a dispute over astudent’s grade because Commissioner has no authority to interpretcollective bargaining agreements. Moreover, Commissioner hasno jurisdiction to address alleged Open Public Meetings Actviolations since alleged violations not ancillary to a school lawissue.D. See NJSBA policy, File Code 9114Seeks amendment to allow boards to remove board members for failure toattend 2/3 of the meetings annually, without good cause.IV.Resignation of Board membersA. What is required for a board member to effectively resign?A board member cannot be compelled to serve. Therefor, if a resignationis clearly communicated to and received by a board, it is effective, evenwithout a formal vote by the board and even if the board’s ordinarypractice is to vote on resignations. Silberstein v. Lakewood Bd. of Ed.,1990 S.L.D. 491.B. Can a board member rescind his resignation?Yes, but only before the resignation becomes effective. Once it is clearlycommunicated and received by a board, a vacancy has been created. Theboard may fill the vacancy as provided for in statute. (see Section IV)V. Filling board vacancies N.J.S.A. 18A:12-15A. How are they filled?In most cases, a vacancy is filled by a majority vote of the remainingmembers of the board after the vacancy occurs. The board has 65 days tofill the vacancy; if it does not meet deadline, county superintendent willfill vacancy.

7Majority of the quorum: Vote to ratify a collective bargaining agreement,adopt policy, approve bills.Majority of the full board: Vote to appoint teachers and administrators, toadopt the budget, and to withhold the increments of a teaching staffmember.B. Board may not require supermajority vote unless statute specificallyprovides; thwarts will of majority to require a greater vote than requiredby statute. Matawan Teachers Ass’n v. Bd. of Ed., 223 N.J. Super. 504(App. Div. 1988)C. In sending- receiving districts, the sending representative may vote onlyon certain matters. (see Section VII below.)The number of board votes required to pass a motion will be based on thenumber of members eligible to vote on a particular matter, which may ormay not include the sending representative (s).VII.Sending Representation on Receiving BoardA. N.J.S.A. 18A:38-8.2B. Branchburg Bd. of Ed. v. Board of Education of Somerville, United StatesDistrict Court, District of New Jersey Civil No. 98-5557 (AET) (Consol.)(September 7, 2000) New Jersey’s formula for sending districts’ votingrepresentation on receiving district boards of education is unconstitutionalas applied to the sending-receiving relationship between the Somervilleand Branchburg Township boards. Court asks that within 60 daysCommissioner recommend a constitutionally permissible manner forresolving the problem, until Legislature formulates a legislative solution.C. Branchburg Bd. of Ed. v. Bd. of Ed. of Somerville, et al., United StatesDistrict Court, District of New Jersey Civil No. 98-5557 (AET) and 99-822 (AET) (Consol.) (May 22, 2001) Commissioner failed to recommenda constitutionally permissible manner for resolving the votingrepresentation problem nor could the parties reach a standstill agreement.Court ordered remedial plan be implemented whereby Branchburg wouldappoint six (6) members to the Somerville board, each with one vote,giving Branchburg control of 40% of the votes on matters affecting theirhigh school students while enabling Somerville to maintain a majorityvote. Somerville's motion to stay the remedial plan denied becauseSomerville maintains majority vote and may continue to operate thedistrict. No irreparable harm demonstrated. On appeal to Third CircuitCourt of Appeals.

8D. English v. Board of Education of the Town of Boonton, 135 F.Supp.2d588 (D.N.J. 2001) New Jersey’s formula for sending districts’ votingrepresentation on receiving district boards of education is unconstitutionalas applied to the sending-receiving relationship between the Lincoln Parkand Boonton boards. Parties directed to propose joint resolution toproblem by April 30, 2001 or, failing a consensual solution, theCommissioner of Education directed to submit proposal by May 18, 2001with response by plaintiff by May 31, 2001.E. English v. Board of Education of the Town of Boonton, 2001 WL1018368 (D.N.J.) August 21, 2001, Two-tiered voting structureestablished by the Court. Sending district to have 4 representatives, eachwith 2.5 votes. On high school issues sending district has 10 votes,receiving district 9 votes. Remedy to remain in effect until New JerseyLegislature amends the statute. Stay granted – Court of Appeals 9/24/01.Formal hearing to follow.VIII. Voting in sending-receiving districtsA. Sending district’s representative is permitted to vote on the followingitems listed in N.J.S.A. 18A:38-8.11. Tuition charged to sending district, and bill lists or contracts forpurchase, operation or maintenance of facilities, equipment andinstructional materials to be used in the education of the pupils ofthe sending district.2. New capital construction to be used by sending district pupils.3. Appointment, transfer, or removal of teaching staff membersproviding services to pupils of the sending district, includingteaching staff members who are members of the receiving district’scentral administrative staff.4. Addition or deletion of curricular and extracurricular programsinvolving pupils of the sending district.B. In addition, sending district’s representative may vote on:1. Procedural matters such as election of board officers and otherprocedural matters related to “the orderly conduct of Boardoperations.”

9C. Although the sending district’s representative may not vote on issues otherthan those listed above, the representative may:1. Participate in discussions of all issues, even those on which he/shehas no vote (however, it is improbable that the appointee will findneed to participate in discussions of issues on which he has novote).2. Receive copies of information distributed to other board members.D. The sending district’s representative may not disclose confidentialinformation to the other members of the sending board.1. He/she may communicate confidential/items freely with thesending district’s superintendent, who is required to maintain strictconfidentiality.2. The representative may communicate non-confidential informationto the other members of the sending board at a board meeting.Lincoln Park Bd. of Ed., v. Boonton Bd. of Ed., 1997 S.L.D. (May 30);Little Ferry Bd. of Ed., v. Ridgefield Park Bd. of Ed., 1997 S.L.D. (July24); Green Twp. Bd. of Ed. v. Newton Bd. of Ed., 1997 S.L.D. (August5).IX.AppointmentsA. General rule: A board may not vote to appoint for a position that will notbe vacant during that board’s lifetime. Barckett v. Garfield Bd. of Ed.,1990 S.L.D. (August 30) An appointment in anticipation of a vacancy isproper only where the board making the appointment is still in office whenthe vacancy occurs; otherwise, the present board has no right to interferewith the rights of a successor board to make that decision.B. When can your board appoint a new superintendent? Gonzalez v.Elizabeth Bd. of Ed., 325 N.J. Super. 244 (App. Div. 1999) A schoolboard may not appoint a new superintendent whose term begins only aftera successor board is sworn in.Example: If superintendent has a 3-year contract that expires July 1, 2001,notice of nonrenewal must be given by July 1, 2000. N.J.S.A. 18A:17-20.1. But only the board as constituted at the April 2001 election may fillthe vacancy. Appointment is made through a recorded roll call majorityvote of the full membership of the board. N.J.S.A. 18A:17-15

10See, also, Dunn v. Elizabeth Bd. of Ed., 96 N.J.A.R.2d (EDU) 279, aff’dSt. Bd. 96 N.J.A.R.2d (EDU) 285. Superintendent may be relieved of hisduties for remainder of contract (with pay) N.J.S.A. 18A:27-9, but maynot be reassigned. Board may employ “acting” superintendent forremainder of contract period, but new appointment may not be made untilafter contract expires.West Village Civic Club, Inc. v. Manchester Twp Bd. of Ed, State Board,1996 S.L.D. (June 7) , Graham v. Kearny, 95 N.J.A.R.2d (EDU) 510.Parties may extend an existing contract but the contract may notrun more than a total of five years from its start.Parties may rescind superintendent’s contract prior to itsexpiration, and enter into new contract of 3-5 years; board mustprovide clear public notice of its intentions to rescind the oldcontract.C. Recent Decisions1. Howard v. East Orange Bd. of Ed., 2001 S.L.D. (June 5)Failure to renew superintendent’s contract before July 1 or givenotice of nonrenewal pursuant to N.J.S.A. 18A:17-20.1, triggerednew contract with same provisions as expired contract including5% salary increases.2. Kohn v. Vineland Bd. of Ed., 2001 S.L.D. (Sept. )Board of Education acted illegally in buying out superintendent’sfive-year contract for 33.3% of salary, and placing him in anotherposition with a lesser salary, notwithstanding contract clause soauthorizing.X. Does the board have the authority to decide whether to renew employees?A. N.J.S.A. 18A:27-4.1; Velasquez v. Brielle Bd. of Ed., St. Bd. 1997 S.L.D.(Aug. 8); N.J.A.C. 6:3-4.2Board of education can only renew an employment contract if theCSA so recommends, and then by recorded roll call majority voteof full board.However, even if the CSA does not recommend renewal, and theemployee is notified by the CSA of nonrenewal, the board is notforeclosed from renewing the contract of such an employee. Theboard may renew the employment if the employee requests awritten statement of reasons and an informal appearance before the

11board, during which the employee convinces the board to offerreemployment.On the other hand, even if the CSA recommends reemployment tobegin with, the board need not renew, as long as its decision is notarbitrary and unreasonable (“capricious”).These provisions requiring the superintendent’s recommendationapply to renewal of employees except for treasurer of schoolmoney, election officer, board auditor, board attorney, and boardsecretary who does not perform SBA functions.XI.Access to Personnel RecordsHorner v. Kingsway Regional, 1990 S.L.D. 752.Applicants: Board members may access official files of all applicants foremployment.Employees: Board members may access personnel files of those employeesrecommended to the board for specific employment action “to the extent that suchfiles are relevant to the specific action to be taken or deemed pertinent by the CSAin response to the Board’s directive to provide information essential forperformance of a specific, officially assigned Board duty.”Beatty v. Chester Bd. of Ed., 1999 S.L.D. (August 31).Board may not limit access only to those candidates considered by personnelcommittee. May place reasonable restrictions on times and places for review ofmaterial.Ciambrone v. Bloomingdale Bd. of Ed., 2000 SLD (May 7)Access to personnel materials: Board must ensure that individual boardmembers’ access to personnel information is confined to that necessary for theperformance of essential board member duties; however, Commissioner has nojurisdiction over teacher’s invasion of privacy claim for sanctions againstindividual board member who accessed her personnel records.XII.Indemnification (reimbursement of legal fees and costs)N.J.S.A. 18A:12-20 Whenever a civil, administrative, criminal or quasi-criminalaction or other legal proceeding has been brought against a board member for anact “arising out of and in the course of the performance of his duties as a memberof a board of education” the board of education shall defray all costs of defendingsuch action. In criminal or quasi-criminal matters, the board of education shall

12defray the costs if the final disposition of the action is favorable to the boardmember.P.L. 2001, Chapter 178, Effective 7/26/01, Attachment IVQuick v. Old Bridge Bd. of Ed., 308 N.J. Super. 338 (App. Div. 1998)Board member who in good faith defended lawsuit brought by board toexclude her from attending certain closed door meetings, was entitled toreimbursement for legal expenses. Was sued by reason of her boardmembership.Errington v. Mansfield Bd. of Ed., 100 N.J. Super. 130, (App. Div. 1968)Board member was not entitled to reimbursement of legal fees fordefending defamation lawsuit brought against him for publishing allegedlydefamatory letter; letter was not an act “arising out of” duties of boardmember.Board has no obligation to indemnify for proceedings that areadministrative in nature, like those before administrative tribunal or intraffic court. Board may indemnify, but is not required. Passaic Bd. of Ed.v. Fernandez, 1996 S.L.D. (Oct 10) (Board was not required to indemnifyboard member who was exonerated in a matter before EthicsCommission). [Note: The holding in this matter is no longer good law, inlight of P.L. 2001 Chapter 178.]legal\webpage\governance outline