Voting Issues for Boards
of Education
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NJASBO Workshops
Mt. Laurel and Rockaway
December 9,11, 2014
Voting Issues for Boards of
Education
Issues to be Considered
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Participation – Who can, Who can’t?
Level of vote required
Doctrine of Necessity
Abstentions
Miscellaneous Issues
Voting Issues for Boards of
Education
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
Collective Negotiations Participation
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
Collective Negotiations Participation
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
Collective Negotiations Participation
"Relative" - individual's spouse, civil union
partner … domestic partner…, or the parent,
child, sibling, aunt, uncle, niece, nephew,
grandparent, grandchild, son-in-law, daughterin-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.
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
Collective Negotiations Participation
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.
• School Ethics Act definition of
“relative” – spouse, child, parent,
sibling
• Martinez v. Abolino, SEC 6/7/12 –
internal, external candidates
Personnel Issues
CSA/Supervisor/Principal
• 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.
• School Ethics Act definition of
“relative” – spouse, child, parent,
sibling
Personnel Issues
CSA/Supervisor/Principal
• Board members may not participate in
any personnel decisions respecting a
CSA, principal, or supervisor who
directly or indirectly supervises their
relative.
• School Ethics Act definition of
“relative” – spouse, child, parent,
sibling
Collective Negotiations Participation
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
Personnel Issues
CSA/Supervisor/Principal
Emerging Issues
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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;
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.
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
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• 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)
Number of Votes Required
Determination of quorum for meetings of
public body where one or more vacancies
exist
Attorney General Formal Opinion No. 3
(1991)
Number of Votes Required
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”
Number of Votes Required
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)
Number of Votes Required
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;
Number of Votes Required
"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
Number of Votes Required
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
Number of Votes Required
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
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)
Number of Votes Required
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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
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
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
Doctrine of Necessity
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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)
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.
Doctrine of Necessity
Common Areas of Application
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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 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.
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.
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
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
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