Legal Update
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This is the Legal Update presentation provided by NJSBA in Williamstown, NJ on 01/09/2010
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Legal Update
- 1. ADVANCED BOARD TRAINING 2009-10 SCHOOL LAW UPDATE
- 2. School Law Update State & Federal Court Decisions Administrative Rulings Labor Update Statutes Administrative Code
- 34. WHY IS THIS IMPORTANT
- 36. NJEA’s position will be that nothing has changed
- 47. NJSBA Labor Relations Department (609) 278-5219
- 62. ADVANCED TRAINING: LEGAL UPDATE Legislation Update Regulation Update
- 86. Accountability regulations prevent a board of education from hiring relatives of any sitting board member. Correct - Click to continue Incorrect - Click to continue You answered this correctly! Your answer: The correct answer is: You did not answer this question completely You must answer the question before continuing Advanced Training - Legal Update Submit Submit Clear Clear A) True B) False
- 87. A fact-finder makes a binding decision regarding the terms and conditions of the new collective negotiated agreement . Correct - Click to continue Incorrect - Click to continue You answered this correctly! Your answer: The correct answer is: You did not answer this question completely You must answer the question before continuing Advanced Training - Legal Update Submit Submit Clear Clear A) True B) False
- 88. Whenever a new school district is created, the tenure and seniority rights of teachers must be preserved. Correct - Click to continue Incorrect - Click to continue You answered this correctly! Your answer: The correct answer is: You did not answer this question completely You must answer the question before continuing Advanced Training - Legal Update Submit Submit Clear Clear A) True B) False
- 89. In a typical district, approximately 40% of the budget is controlled by the collective negotiations agreement. Correct - Click to continue Incorrect - Click to continue You answered this correctly! Your answer: The correct answer is: You did not answer this question completely You must answer the question before continuing Advanced Training - Legal Update Submit Submit Clear Clear A) True B) False
- 90. The Paid Family Leave Act does not apply to school districts. Correct - Click to continue Incorrect - Click to continue You answered this correctly! Your answer: The correct answer is: You did not answer this question completely You must answer the question before continuing Advanced Training - Legal Update Submit Submit Clear Clear A) True B) False
- 91. If your district participates in the School Employees Health Benefit Plan, the district must cover all the cost of providing single coverage for eligible employees. Correct - Click to continue Incorrect - Click to continue You answered this correctly! Your answer: The correct answer is: You did not answer this question completely You must answer the question before continuing Advanced Training - Legal Update Submit Submit Clear Clear A) True B) False
- 92. A school board may charge parents for legal costs incurred in enforcing student discipline policies. Correct - Click to continue Incorrect - Click to continue You answered this correctly! Your answer: The correct answer is: You did not answer this question completely You must answer the question before continuing Advanced Training - Legal Update Submit Submit Clear Clear A) True B) False
- 93. Students have no right to_____. Correct - Click to continue Incorrect - Click to continue You answered this correctly! Your answer: The correct answer is: You did not answer this question completely You must answer the question before continuing Advanced Training - Legal Update Submit Submit Clear Clear A) dress however they please B) freedom of speech C) freedom of religion D) privacy
- 94. An administrator may search a student's car while it is parked in the school parking lot where the administrator has __________. (check all that apply) Correct - Click to continue Incorrect - Click to continue You answered this correctly! Your answer: The correct answer is: You did not answer this question completely You must answer the question before continuing Advanced Training - Legal Update Submit Submit Clear Clear A) reasonable suspicion B) disciplined the student previously for drugs C) heard rumors of illicit drugs D) given the student permission to park on district property
- 95. Match each superintendent contract term to the proper notice of termination. (Drag each letter into the correct box) Length of Term Required Notice Correct - Click to continue Incorrect - Click to continue You answered this correctly! Your answer: The correct answer is: You did not answer this question completely You must answer the question before continuing Advanced Training - Legal Update A. 150 days B. 90 days C. 120 days B 3-year term C 4-year term A 5-year term Submit Submit Clear Clear
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Hinweis der Redaktion
- Time - No more than 2:30 for this slide Introduction – “Now we want to move to the area of superintendent contracts, a very popular topic this past year…” a. Accountability Act and regulations with their public notice requirements b. Retirement packages - new litigation that was filed June 3: State v. Trzeszkowski and the Keansburg BOE , Superior Court (filed June 3) (pending) 1. AG filed on behalf of Commissioner Davy Challenging severance provision of Keansburg’s 2003 CSA contract that provided a month's salary for each of 38 years she served in District. 2. CSA would receive $556,290 for 38 years, and $184,586 for 235.5 unused sick days and 20 vacation days. 3. New regulations limit unused sick leave to $15,000. 4. N.J.A.C. 6A: c. Diploma mills III. Discussion - Brief review of the tenure dismissal process Charges filed with B/S alleging inefficiency, incapacity, unbecoming conduct or other just cause. Board certification determination – Probable Cause = Enough evidence for Commissioner to determine truth & whether conduct warrants punishment. Preponderance Standard. Charges may be certified to the Commissioner & salary may be suspended Process generally takes 6-18 months Charged employee receives full salary after 120 days
- Maybe mention Oberwanowitz: Complainant sought access to correspondence and email between district administration, board of education and township committee members, collectively or as individuals, in which the Complainant’s name or position was mentioned or referred. This request required an open-ended search of the board of education’s files and failed to identify with reasonable clarity the records sought. Complainant requested “correspondence” without further reference as to what type of correspondence was requested, such as letters, memorandums, or facsimile transmittals, etc. Complainant failed to identify specific parties to the requested correspondence, but rather requested correspondence between categories of personnel, such as Township Committee members and district administration. Because the Complainant failed to identify with reasonable clarity the records sought, and because the request required an open-ended search of the board’s files, the request is invalid and properly denied. Oberwanowicz v. Branchburg Township Board of Education No. 2008-113 (GRC June 23, 2009)
- Focusing only on the Act, plaintiffs’ first cause of action alleges that defendants’ failure to provide them with notice (or, alternatively, with adequate notice) of the failing status of their children’s schools violates 20 U.S.C. § 6316(b)(6). The second cause of action alleges that defendants’ failure to provide plaintiffs with notice (or adequate notice) of their right to transfer their children out of a failing school to a non-failing school violates 20 U.S.C. §§ 6316(b)(1)(E) and 6316(b)(6)(F). The third cause of action alleges that defendants’ failure to provide plaintiffs with notice (or adequate notice) of their right to request supplemental educational services for their children who were attending failing schools in Year 2 or higher violates 20 U.S.C. §§ 6316(b)(6)(F) and 6316(e)(2). The fourth cause of action alleges that defendants’ failure to provide plaintiffs with notice (or adequate notice) of their right to request information about the professional qualifications of their children’s teachers violates 20 U.S.C. § 6311(h)(6). The fifth and final cause of action alleges that defendants’ denial of and interference with plaintiffs’ right to request and/or receive supplemental educational services for their children who were attending failing schools. They asked the court to order defendants to comply with the Act’s notice and supplemental educational services obligations, compensatory education for all eligible students, and reasonable attorneys’ fees and costs. As we noted at the outset, no federal court of appeals has decided whether the Act’s various notice and supplemental educational services provisions confer on individuals a private right of action to enforce those provisions. It is worthy of mention, however, that every district court that has decided the question has held that, whatever the provision at issue, the Act does not confer a right of action enforceable by individuals or individual providers of supplemental educational services.
- This year we saw a few important rulings that involve a board’s ability to terminate the employment of a non-tenured person in the middle of the school year, and what procedures must be followed. These cases the language of the CBA is crucial and can mean the difference between dismissing an employee by simply giving a specified number of days’ notice in advance under the individual employment contract, or having to go through a grievance arbitration hearing, where the arbitrator might disagree with the board’s decision to terminate the employee. You want the language to be clear so you don’t have to go to court to figure out what the CBA means. Recent cases teach us that if a district wants to have the ability to terminate under the individual employment contract, it should make sure that the collective bargaining agreement doesn’t conflict with that, because the collective bargaining language will take precedence and there is a presumption favoring arbitration.
- The agreement contained no provision for "progressive discipline." Nevertheless, the arbitrator opined that "progressive/corrective discipline [is] an integral part of the just cause concept." He then concluded that a ten-day suspension without pay was the appropriate penalty because termination was "not reasonably related to the offense and [was] disproportionate to the gravity of [Mizichko's] misconduct." On appeal, the Board argues that the trial court's confirmation of the arbitration award must be reversed because the arbitrator exceeded the authority conferred by the parties' agreement Appellate Court held: Arbitrator exceeded his authority. Here, the agreement between these parties makes no provision for progressive discipline. Thus, in directing that the Board utilize the concept of such progressive discipline with respect to Mizichko, the arbitrator "ignored the contractual provision that prohibited him from adding to, altering, or modifying the parties' agreement."
- CHRONOLOGY Klumb worked in district from 1968 to 1988. The Board filed tenure charges for incapacity, absenteeism and insubordination. Took a disability retirement in 1988 while charges were pending. (been filed in 1997?) TPAF approved disability pension June 2, 1988. She was examined in March 1994 and TPAF determined that she was still disabled in May 1994. In 1998 TPAF determined that her organic brain syndrome had diminished--directed the Board to reinstate her. The Board sent a letter disagreeing and seeking a hearing. TPAF wrote back to clarify that N.J.S.A. 18A:66-40(a) (which requires a disability retiree to undergo medical exams to determine if the disability still exists) “does not address reemployment nor does it require an employer to reemploy the member.” Teacher appealed TPAF’s ruling that board did not have to reemploy her, but her appeal was dismissed for lack of jurisdiction since the board was not a party to the TPAF determination.On March 1, 1999 the teacher interviewed for a job in the district --she received the lowest ranking and was not hired. (In his ruling, Comm’r says that is effective date of her reinstatement) Three years later, in April 2002, she filed a complaint against the board in Superior Court; it which was transferred to an ALJ. The ALJ granted the board’s cross motion for summary judgment that N.J.S.A. 18A:66-40(a) does not require reinstatement. Judge Tylutki relied on TPAF’s interpretation of its own statute, and the board’s important responsibility to hire qualified teachers.On June 16, 2005, the Commissioner rejected that recommendation and ordered the board to reinstate her as of March 1, 1999 with all “emoluments and back pay” from the date of the interview, March of 1999. As the board’s motion for a stay of this order was denied, the teacher has been employed as an elementary school teacher since September, 2005, earning at the top of the scale. There are separate matters pending in other forums with respect to issues including back pay, duty to mitigate and repayment of disability received to TPAF (apparently she continued to receive disability payments for a period of time after March 1999)The State Board and Appellate Division affirmed the ruling. The Appellate Division cited the “plain language of the statute” and the “long standing practice of the Department of Education and other agencies interpreting similar statutory language…”
- Brief review of the tenure dismissal process Charges filed with B/S alleging inefficiency, incapacity, unbecoming conduct or other just cause. Board certification determination – Probable Cause = Enough evidence for Commissioner to determine truth & whether conduct warrants punishment. Preponderance Standard. Charges may be certified to the Commissioner & salary may be suspended Process generally takes 6-18 months Charged employee receives full salary after 120 days
- Time - No more than 2:30 for this slide Introduction – “Now we want to move to the area of superintendent contracts, a very popular topic this past year…” a. Accountability Act and regulations with their public notice requirements b. Retirement packages - new litigation that was filed June 3: State v. Trzeszkowski and the Keansburg BOE , Superior Court (filed June 3) (pending) 1. AG filed on behalf of Commissioner Davy Challenging severance provision of Keansburg’s 2003 CSA contract that provided a month's salary for each of 38 years she served in District. 2. CSA would receive $556,290 for 38 years, and $184,586 for 235.5 unused sick days and 20 vacation days. 3. New regulations limit unused sick leave to $15,000. 4. N.J.A.C. 6A: c. Diploma mills III. Discussion -
- Introduction Slide – In the Tenure Hearing of Witmer, Middletown Twp ., 2007: Commr., Dec. 24. Board filed tenure charges against CSA based in unbecoming conduct for - Misdirection of vacation time; b. misdirection of personal leave time; c. abuse of authority; & d. deceiving the board Discussion CSA was entitled to a maximum of 40 vacation days per year, if he combined the full allotment of the prior year with the full allotment of the current year. CSA directed personnel office to carry-over 20 days more than allowed by contract for a total of 60 days. CSA was not paid for accrued but unused vacations days and there was no allegation of theft. CSA also directed personnel office to roll unused personal leave into unused sick leave. Personal days were “use it or lose it”. No provision as to vacation days. CSA argued that contract was silent on carry-over vacation days it was appropriate. CSA also indicated that staff advised that he could roll personal into sick. Commissioner found that CSA misdirected vacation and personal leave, abused his authority, and mislead the board, all constituting unbecoming conduct. Commissioner determined that CSA actions did not have significant detrimental consequences, therefore did not warrant the ultimate discipline of termination. Commissioner noted that CSA is held to a standard of behavior unequaled by any other school employee. CSA must act with the utmost integrity, good judgment, and self-restraint . CSA suspended for 6 months. Donna discussion: Board didn’t prove all of the charges but did prove some. (Middletown) These were proven: Didn’t tell the board president of several of his absences, as he was required to do under the contract (but he did tell the personnel office he was out and was charged for the days)—so while he violated the contract he obtained no benefit, so not unbecoming conduct—just inadavertent neglect He directed personnel staff to carry over more vacation days than he was authorized to carry over under his contract (he relied on an unreasonable interpretation of the contract language in doing so) Not enough to dismiss him---he may have realized that he wouldn’t be paid for them until he leaves district, and they would be fully reviewed by the personnel office, the BA and finance committee, and approved by the Board He directed personnel staff to roll over of personal days to sick days although the contract and board policy were silent and without notice to the board (there was conflicting testimony about whether he’d been told it was by personnel office that it was okay and in reliance on a benefits chart from an unrelated matter) Abused his authority by so directing them, even tho he wasn’t intimidating, they never voiced their concern or unwillingness—and in fact record bore out that he couldn’t intimidate them---on other occasions they took actions despite his expressions of disagreement Failed to provide accurate information when the board requested details about an investigation leading up to the termination of a teacher—he said he didn’t know. (But doesn’t warrant dismissal--- While any untruthfulness between a superintendent and board of education is a matter of serious concern since it negatively impacts on a relationship that must be based on trust, I FIND that the foregoing findings do not establish Dr. Witmer's unfitness to discharge the duties and functions of his office or position as superintendent . The subject-matter of the untruthful response was simply not that important he had nothing to gain HE WASN’T DISMISSED BECAUSE ALTHOUGH EGREGIOUS, would effectively end his or her New Jersey educational career and not as seriuos as other cases where CSAs were dismissed: Howard: school district resources for his personal advantage and misrepresenting to the Board the costs and processes involved in relocating his own office; Pitch: dishonesty in misrepresenting his academic credentials at the time of his initial appointment and using his office telephone for making personal calls; Cirangle:provided the Board of Education with an altered version of a bill from an optometrist, and alleging that the superintendent had signed a principal's name a series of vouchers for equipment he later used for his personal gain. Also mention new litigation that was filed June 3: State v. Trzeszkowski and the Keansburg BOE , Superior Court (filed June 3) (pending) AG filed on behalf of Commissioner Davy Challenges severance provision of Keansburg’s (Abbott District) 2003 CSA contract that provided a month's salary for each of 38 years she served in the District CSA would receive $556,290 for 38 years, and $184,586 for 235.5 unused sick days and 20 vacation days.
- Time – :30 Introduction/Transition – Now we move from employee speech to student speech. As a general rule, can a district prevent a student from speaking out about important educational issues or must it generally tolerate student speech that is not lewd or offensive?
- The state Supreme Court today issued a 5-0 ruling , declaring that the School Funding Reform Act of 2008 is constitutional as applied to the state’s 31 Abbott districts. The decision satisfies the Corzine Administration’s goal to establish a single school funding system that applies to all districts. “ The legislative and executive branches of government have enacted a funding formula designed to achieve a thorough and efficient system of public education for every child, regardless of where he or she lives,” stated a syllabus of the decision. “ The political branches are entitled to take reasoned steps to address the pressing social, economic, and educational challenges confronting the state, without being locked in a constitutional straightjacket.” Justice Jaynee LaVecchia wrote the decision. Special Master Last year, the governor petitioned the court to secure its blessing for the new school funding system, which would relieve the state of the responsibility, established through a series of decisions in Abbott v. Burke , of operating and funding separate school aid strategies for the Abbott districts. Those court-ordered requirements included parity (spending for regular education in the Abbott districts at the same level as that of the state’s wealthiest communities) and supplemental funding (additional aid available to Abbott districts to support certain programs and services). The court refused to immediately grant Corzine’s request and, instead, turned the matter over to a “special master” for fact-finding and preliminary arguments. In March, Judge Peter E. Doyne recommended to the court that it declare the SFRA constitutional, that the matter be revisited after the SFRA was in operation for three years, but that supplemental aid should continue to be available to the Abbott districts. No Supplemental Aid Today’s Supreme Court decision reflects Doyne’s recommendations—except for continuation of supplemental aid. “ The court held that the SFRA is meant to be a state-wide unitary funding system.” It stated, “Because continuation of supplemental funding may undermine or distort the effectiveness of SFRA, and because the Abbott districts will be the recipients of a considerable amount of federal and other non-SFRA funds during the period of time until the look-back review occurs, the Court declines to order the continuation of supplemental funding until SFRA’s review occurs.” David Sciarra: The NJ Legislature’s passage of the FY10 State budget in late June ---aid levels are based on how much politicians want to spend in any given year, not on what the new formula prescribes for a “thorough and efficient” education.The result: a budget cut of $303 million in basic SFRA school aid – called “equalization aid” – to 325 school districts. Legislators also cut aid to expand the effective Abbott preschool program to 6100 children in districts with poverty levels above 40%, and to an as yet undetermined number of low-income children in middle class and wealthy districts. The cut in SFRA preschool aid could top $50 million.
- Pursuant to N.J.S.A. 18A:7G-12, Milford, Commissioner 2008: October 24 –for school facilities project if voters fail to approve and in last three years also tried unsuccessfully, board may submit the project to the commissioner and request that the commissioner approve the project and authorize the issuance of school bonds for the local share of the project . Here, building needs included electrical upgrades, installation of a fire alarm system, roof replacement, exit signs and emergency lighting, all of which have been defeated by voters
- Now, e/o here is a veteran Board Mbr . So I am going to assume that you’ve been involved in K nego , either as a mbr of the nego team or as a bd mbr . Given that you’ve already been through collective bargaining at least once, you know first hand that is a fascinating and sometimes frustrating process . You know that over the past 18 mos there has been an unprecedented focus on the cost of public employment , from the public, press, legislature and gov’s ofc This changing environment presents some real challenges and opportunities and (1) were going to spend some time talking about that. We’re also going to talk about some (2) strategies you can use in upcoming nego and, (3) finally, we’ll touch on 3 pieces of leg, SHBP, Sick Leave Banks and Paid family Leave - that have come down the pike in the last 18 mo. and how will impact your LR. Now all these changes have not taken place in a vacuum, they have taken place in a highly regulated employment relationship between you and your school ees.
- The regulatory framework for this relationship is in large part encapsulated in the PERC law . The PERC law is fairly lengthy but it can be distilled down to one (albeit fairly long) sentence. IT REQUIRES THAT YOU ENGAGE IN A JOINT DECISION MAKING PROCESS WITH YOUR EMPLOYEE UNIONS OVER TERMS AND CONDITIONS OF EMPLOYMENT. And this joint decision making process is critically important to the success of your district. Let me show you a chart.
- That joint decision making process controls 70 to 80 % of your district’s budget. That’s right about 75% of your budget is labor costs. Everything else is the remaining 25%. HVAC, playground equipment, books, ofc supplies, everything else. Hallmarks of this changing environment .
- You’re ability to raise revenue to fund settlements is stunted by the Tax Levy Cap. Also stunted by general economic downturn , and other things like skyrocketing fuel costs. (Unlike previous spending limits which restricted the growth of the majority of the school budget, A-1 caps the growth in the tax levy to 4-percent (w/ adjustments for enrollment, healthcare increases and reductions in state aid). Informal Tax Levy Cap . I think its fair to say that there is declining willingness on the publics part to support higher settlements with higher taxes, and for negotiated agreements that do not contain some form of insurance cost containment. E/o heard how come they get free health care I have to pay or I don’t have. And what has become a perennial problem, high insurance costs. Some reason to hope in this area I’m going to talk about later.
- Now, as I think you can guess as veterans of the process, the NJEA’s position will be that nothing has changed – they will continue to defend the castle, if you will. Reluctant to let go of a status quo that has been favorable to them. - fully paid insurance . And you have to be aware that their resistance to change is to be expected – its consistent with their role in the process.
- 64% of contracts covering 08-09. These negotiated provisions include: Some of this data is driven by the changes in the state plan, which will talk about in more detail a little later. Now these are just examples and how this unfold in your district depends on a lot of factors, your staff demographics, your current plans, your bargaining history etc. Prior to going into negotiations, we strongly recommend that you talk with an insurance consultant. Couple this new environment with unions’ traditional resistance to changing the status quo and you have a recipe for mismatch bargaining expectations. Let’s talk about some strategies to deal with that , hold the line on compensation and improve you CBA.
- Tell union operating in a very different nego environ than we were 5 or even 3 years ago. Tight dollars, high tax rates, state imposed tax caps, high ins. costs and a general econ downturn. Anticipate your unions reaction , That's your problem. They expect business as usual: annual increases in salaries that exceed the last nego settlement, improv K benefit package, and no increases in their professional resp. Do not be intimidated by your unions repeated rejection of reality is a bargaining strategy. Be committed and resolved to advocate your districts needs and to repeatedly convey the realities created by the new law. Practice this response - That was then, this is now. don’t expect a quick and easy resolution. Don’t be hurried. As a general rule , the party that’s rushed get the short end of the stick. Shift the focus away from comparable data to ability to pay. Tax data, budget data, budget defeats, etc. Be Prepared – Gather this ability to pay data, you tax receipts, budget data, as well as comparability data to refute Union data mediation and fact-finding, need to marshal all information This is especially import in mediation and fact-finding . You have to focus the neutral on the limits of you ability to pay, not so much on what the district down the street is paying. The union will be able to construct some data set that “demonstrates” that they are underpaid. Do not be afraid of mediation , (50% go to mediation) as well as the other impasse procedures, Can help the parties resolve their deadlocked nego
- As Part of this changing environment, I want to talk about three 3 specific issue that have come down the pike in the last 18 months that will likely impact your labor relations and contract negotiations this year and in the future.
- As you know , a/o 7/1 the SHBP is no more and a/o that date e/o was transitioned to the SEHBP . The new plan differs from the plan that was in place a year ago in significant ways. Traditional Coverage gone Single Coverage As you know the uniformity requirement under the state plan has been done away with. So you can now negotiate cost containment measures that have the effect of treating different groups of employees differently. Can negotiate a provision that treats tenured and non-tenured staff differently in terms of cost sharing arrangements. Or a provision could be negotiated where the employees’ contribution to the premiums could differ depending on their date of hire . Support/ teachers. Waiver incentives allowed in state plan. Good idea. If in a private plan still have to negotiate over this.
- So what???, my district is not in the State Plan. Even if your district is not a member its important , these changes ought to result in a more dynamic insurance market and provide some leverage to achieve insurance givebacks. Can point to these changes and say – hey things are changing, even in the State plan. Some boards may find that the plan structure changes, rate changes, and greater flexibility to negotiate cost containment measures make the state plan a more attractive option. Thus, some boards that currently participate in SHBP may decide to remain in the plan (at least for now). Other Boards may consider joining or returning. From 30% to 35%. Subsidized, currently. SEHBP is being subsidized (90 mil) by the state so its fair to say that the rates are artificially low right now Depends on demographics of state, your local ins. mkts, etc. I’d strongly recommend that you consult with an insurance consultant prior to negotiations and carefully consider all implications, short and long term, before making major changes including changing carriers.
- Non ops – was suppose to happen w/I one year – still on hold Regionalization – ECS recommendation within 3 years March 15, 2010. Part of that plan is “analysis of admin staffing, collective bargaining agreements and compensation guides of the constituent districts.” If approved for Regionalization Special Election – majority vote of each constituent district. Do I want to add s/t hear about Mandated regionalization Commissioners Powers – Jamesburg – mandate regional district Close school district have to take certificated staff – except when it’s the commissioners decision.
- N.J.S.A. 18A:6-31.5 – Whenever new district formed tenure and seniority rights, LOA’s etc of all ee’s are preserved in new district (except supt.) (1995) N.J.S.A. 18A:13-42 – For HS or JHS Regional's teachers retain pension and tenure rights. N/A to Supt and Principals. (60’s) N.J.S.A. 18A:13-49 - Dissolved locals, joining regional Principals, teachers and ee’s continue employment with new district. (60’s) N.J.S.A. 18A:13-64 – W/D or Dissolution – All regional ee’s continue in district positions. Transfer applications w/I 45 days? In dissolution all tenure, seniority , pension, LOA’s, etc. preserved in constituent districts. N.J.S.A. 18A:28-6.1 – Discontinuance of sch or grades – teachers who spend most of their time in dissolved grade have tenure rights in new district w/ option of remaining. N.J.S.A. 18A:28-15 – Change in district government – teachers tenure rights not affected. N.J.S.A. 18A:6-31.6 – New district shall fill all vacancies from a list of those bumped b/c not tenured or b/c of seniority Fiscal, educational and opr implications. IE tenured ee’s will have bumping rights. Thus staffing decisions will be, to a large extent, based on seniority and not qualitative factors. More sr. staff increased costs. More resistant to change? N.J.S.A. 18A:6-31.3 – T&C of employment for new district will be the CBA for the district with the most teachers. Until successor agreement is negotiated. (1995) That K would be the Status quo. Not always but the larger districts often have the most restrictive and expensive. Salary guide. Could generate disputes, more costs, frozen salaries, etc. Internal consistency problems. Union want to enhance position going into negotiations – severance, notification procedures, seniority provisions for staff that don’t have this statutory protection. Must consider the LR implications along with the Legal, fiscal and educational implications of regionalization – forced or by choice.
- Adding to the morass of leave options (maternity, FMLA, FLA, sick leave, etc.) the legislatures has passed a bill that extends TDI to provide paid Family Leave benefits are paid family leave . Working hand in hand with PAA to track the evolution and implementation of this new wrinkle. Let’s look at the basics: The payroll deductions will start in January of 2009 and employees will be eligible on July 1 of 2009. Other considerations
- “ Provide care” for “family member” of employee made necessary by family member’s “serious health condition” (no parent-in-law for FTD) To be with “child” during first 12 months of child’s birth if one parent or civil/domestic partner is biological parent; or during 12 months after placement for adoption. (FTD complete w/I 1 yr/ FLA start w/I 1 yr) 6 weeks or 42 days ER may permit or require EE’s to use paid leave (counts against 6 week entitlement). Up to 2 weeks. Must allow to use during 1 week waiting period. (unless right after TDI, then no waiting period). No independent right to job restoration. While the law provides no independent entitlement to job restoration, be aware that the employee may be protected by a myriad of other provisions, including, but not limited to, FMLA, FLA, tenure, or by provisions of the collective bargaining agreement. And this being NJ, the law specifically says that does not nullify any provision of a CBA that is more generous. Also you can negotiate more generous provisions concerning what kinds of leave must be used when or in what order. Safe harbor for NJEA.
- So as I said this new environment really presents challenges and oppty. Please don’t hesitate to call us in the LR dep't if we can answer any questions or provide you with any data. With that, are there any questions?
- relative (at this point we believe only under SEC definition of relative- spouse, child, parent, sibling ) Also, the restriction on evaluation and other employment action applies to anyone in the chain of command between your relative and the CSA .
- A06-08—He had to abstain as a consequence of the very personal and acrimonious history between the CSA and the board member. What history? Board member got on board 2 months after being fired as result of CSA action, and first act was to seek vote of no confidence against CSA and unsuccessfully brought an ethics charge against him. CSA was concerned that the board member couldn’t objectively evaluate him so he asked for an advisory opinion. The SEC advised that it would be reasonable for the public to perceive that because of that history, the board member was using his new position to secure an unwarranted advantage over the CSA. Query---In what other circumstances would “history” between CSA and board member require abstention? Suggest that if there is some personal history, seek AO.
- Dericks: Commission determined that former board member violated N.J.S.A. 18A:12-24.1(c) by failing to confine his board action to policy-making, planning and appraisal while participating as a members of the district staffing team when he developed detailed staff interviewing documents and directed their implementation without consulting with administration. Former board member censured. Dericks v. Schiavoni , SEC, 2009: April 28 . Mr. Schiavoni removed the resumes before the Superintendent had a chance to copy the resumes for the other members on the staffing team. While the Board may have approved the staffing documents created by Mr. Schiavoni, the Commission finds that the creation of the documents and the content of the documents went beyond the making of policy, planning and appraisal. The documents ranged from a “white paper” on Predicting Future Performance Based on Past Behavior, which supported the use of behavioral questions in interviews, to specific forms such as an interview form and a candidate rating form, which included a detailed rating scale. The documents also included an assessment interview guide, which presented specific steps that should be taken in an interview and indicated how many minutes should be spent at each step. The documents included an Administrator Recruiting Guide that detailed the roles and responsibilities of the chief school administrator and Board members on a staffing team, and provided for a 10-phase recruitment process along with specific selection criteria. The documents were very specific, all encompassing and covered every step of the hiring process leaving very little discretion to anyone utilizing them. While Mr. Schiavoni testified that neither the Superintendent nor any Assistant Superintendent had made an objection when he volunteered to come up with the staffing process, there is no evidence to show that he consulted with anyone in the administration during the development of these documents. The Commission also finds that Mr. Schiavoni’s Board actions went beyond policy making, planning and appraisal when he took candidate resumes for the position of the Helen Morgan Principal home to review over the weekend and then passed the resumes on to another Board member for her review. In this matter, the respondent’s actions were more severe in that he took the resumes out of the district to review, and then exchanged the resumes with the other Board member on the staffing team. It appeared that a board member revealed to an unsuccessful candidate some confidential closed session discussions during which the board allegedly determined not to hire her based on her age and gender—illegal bases for making hiring decisions. Ethics complaint filed against 2 board members who may have spoken to the unsuccessful candidate, but candidate wasn’t sure which of the 2 she had spoken to, and so the SEC didn’t find a violation. Madden and Scarpa, SEC 2008: October 27. , however, because the Concern that a board member involved in hiring discussions revealed to the unsuccessful candidate that dPetitioner failed to prove that board members had “ex parte” conversation with employee about executive session discussions, revealing that board failed to hire her based on her age and sex. Petitioner couldn’t say for sure which of the two board members spoke to her. Madden and Scarpa, SEC 2008: October 27.
- /M/O Raymond A. Delbury , Sussex Wantage Regional Board of Education, Sussex County, C64-06, 10/30/07 State Board June 18; App. Div. unpublished decision (per curiam) (A-5873-07T1, August 10, 2009) went to reporters with complaints about the District and went directly to school personnel requesting information in a demeaning and harassing manner. Thus, the Commission recommends the penalty of censure to the Commissioner. the respondent spoke with reporters and complained about open windows at a school building and maxi-pads in the Board office bathroom. There was testimony that the respondent took pictures of the maxi-pads and open windows and these pictures were published in a local newspaper. The respondent’s comments were printed in a December 5, 2006 local newspaper. Supervisor of Curriculum and Instruction, testified that the respondent stopped in her office every Friday for several weeks and would ask her questions that she could not answer. ( He also contacted teachers and administrators and in a demeaning, harassing manner asked them to produce teacher evaluations)
- Member threatened a member of the public at a meeting of the Paterson Board of Education after he called for appellant’s resignation from the board during the public portion of the meeting. While there was disputed testimony about whether the board member actually threatened the member of the public, the Commissioner and State Board believed from the testimony that the board member left the stage and headed to the back of the auditorium towards the member of the public who was in the back of the auditorium, making threats using profanity and indicating that he would see the person “outside”. Atallo (Paterson) “a threat to a member of the public is one of the most egregious violations of the public trust that a board member can commit” The ability of members of the public to observe and appropriately participate when school district boards of education conduct business is essential to ensure such respect and confidence. School board members cannot be permitted to undertake personal actions that …dissuade the public from exercising its right to attend and participate in local board of education meetings.” State Board increased Comm’r recommendation of 3 mo suspension to a year. See also , Grimsley for another case where board member’s conduct got so out of hand that other board members had to physically restrain her from going after the CSAin the parking after a board meeting. By the time the ruling came down, member no longer on the board, so censure. ( Grimsley SEC 2007 Jan. 22 ) Commissioner adopted penalty recommendation. Grimsley , Comm’r, 2008: Feb. 19
- SEC found that board member violated N.J.S.A. 18A:12-24.1(e) of the Code of Ethics for School Board Members when he submitted an article, signed as board president, to the editor of a local newspaper without having first received board approval. Numerous other allegations were dismissed. SEC recommended penalty of censure. Dericks, SEC, 2009: February 24 . SEC dismisses an ethics complaint against incumbent board member, finding that neither her providing an opinion to the press supportive of reduced government, nor sending a letter supportive of regionalization signed “board president” (but couched in the first person, “I”) to the Executive County Superintendent (ECS), constituted “board action” and thus did not violate N.J.S.A. 18A:12-24.1(c)(confining “board action” to policy making). Nor did these acts constitute private action that could harm the board under N.J.S.A. 18A:12-24.1(e) as she neither made personal promises nor purported to speak on behalf of either Board, and the letter was timed so as not to influence the ECS in its investigation of Oradell’s request to withdraw from the Regional Board. Shinevar and Beslow, SEC 2009: March 24 SEC determined that board member/president did not violate the School Ethics Act, particularly N.J.S.A. 18A:12-24.1(f) when he issued a letter of apology to the high school gay-straight alliance regarding statements made at a board meeting. Board policy authorized the president to speak on behalf of the board. The board president’s statements to the press did not violate N.J.S.A. 18A:12-24.1(g) as the allegedly inappropriate statements were made at a public meeting and could not be deemed confidential. Armenti v. Reca, SEC, 2009: July 28 Dressel v. Kolupanowich , Benson v. Gearity—These earlier 2 cases serve as a reminder that if a board member expresses personal opinions in a letter using the designation of “Board member” can cause potential problems and misunderstandings unless the Board member also states that the letter is not authorized by or written on behalf of the board. See, Advisory Opinion A03-07 (April 2, 2007) . In these two separate cases board member wrote letter to the editor with their own opinions , but they identified themselves in the body of the letter as Board members (and in one as President) but never specifically stated the board didn’t authorize. The SEC analyzed the situation and found that the letters did not violate the Act. Why? Because: The letters never stated that they were written on behalf of the Board, the writer used first person pronouns throughout the letter to signal a personal opinion. And in neither case did the SEC identify any specific ways in which the content of the letters had the potential to compromise the work of the board. One clarifying the Board’s position on the construction issue in the letter to the editor; the other pointed out how certain members of the public had been unfairly critical of the District Even tho they squeezed by without a violation, the SEC issued a warning to board members that if they are going to mention that they are board members in a letter, make sure to include the disclaimer that it is not written o/b/o board. Don’t open the door for someone to file a complaint because takes time and energy to defend. (Sometimes you may not even mention that you are a board member but the newspaper will add your title without telling you---so use the disclaimer just in case. ) And of course, whenever you write a letter make sure you are not revealing confidential info, or inaccurate information that could harm the board. Dressel (Monroe) : Wrote a letter to the editor which was published on February 7, 2007 in the Home News Tribune and on February 9, 2007 in The Cranbury Press clarifying the Board’s position on the construction issue in the letter to the editor. Didn’t have specific board approval to write the letter. Although the respondent’s letter to the editor begins with “As President of the Monroe Township Board of Education…,” the respondent credibly testified that she used her title of Board President in the letter because she expected the newspaper to follow a practice common in the industry by putting her name and title at the end of the letter. The Commission also takes note that the respondent did not state in the letter that it was being written on behalf of the Board and that she used first person pronouns throughout the letter. (SEC thought it was clear to the reader that is was her personal opinion). Unlike other rulings where they pointed to specific ways that the board could be harmed, the record does not show and the complainant does not establish how the respondent’s clarification of the Board’s position on the construction issue in the letter to the editor may have compromised the Board. Benson (Toms River) Letter to the editor in local newspaper criticizing the way certain members of the public had been unfairly critical of the District and how those members of the public acted obsessively and were obstructionist. He identified himself as a board member. His goal in sending the letter was to object to the newspaper’s approach to reporting information which he believed was inaccurate and unfairly critical of the Toms River Regional School District. He acknowledged that the Board did not authorize the submission of the letter. Although the letter is attributed to “Edward Gearity, Board Member, Toms River Regional School District,” nowhere in the text of the letter does Mr. Gearity indicate that he is speaking on behalf of the Board. The Commission does not find that the complainant has established a sufficient nexus between the respondent’s letter and its potential for compromising the work of the Board. In so doing, however, the Commission cautions the respondent and other Board members that exercising their right to express their personal opinions while using the designation of “Board member” is fraught with potential problems and misunderstandings unless the Board member also states that the letter is not authorized by or written on behalf of the board. See, Advisory Opinion A03-07 (April 2, 2007) . Related cases re:compromising the board : *CSA did not take private action that could compromise the board in violation of N.J.S.A. 18A:12-24.1(e) when he used school stationary for his personal use by placing his personal email address on it, as the Code of Ethics only applied to board members and not to the CSA. The Commission denied the CSA’s request for sanctions as he did not demonstrate that the complaint was brought for political reasons, nor is there any information to suggest that the complaint should otherwise be deemed frivolous. McCann v. Gass , SEC 2008: May 27. SEC found that while a former board member did not did take private action that could compromise the board in violation of N.J.S.A. 18A:12-24.1(e) or use the schools for the gain of friends in violation of N.J.S.A. 18A:12-24.1(f) as alleged, with respect to the hiring of her fiancé when she remained in the room during the interview and participated in the interviews of the other candidates, she was cautioned that should she serve as a board member in the future, she must bear in mind the restrictions of N.J.S.A. 18A:12-24(c) regarding personal involvement that might reasonably be expected to impair her objectivity and should follow the SEC’s previous findings regarding recusal. McCann v. Harris , SEC 2008: May 27 (Also--Delbury --letter to editor critical of administration as well as a classified ad said, “Call Sussex Wantage BOE member Ray Delbury for answers to your questions (973) 702-3935.” In neither instance was he found to have violated the Act—clear it was private action, and no showing it compromised the board )
- SEC found no personal involvement that created a benefit to board member where board attorney provided personal services to board member while in office and where she voted to appoint attorney as board solicitor. SEC departed from reasoning of previous cases cases, I.M.O. Huber, SEC 1997: May 27 , I.M.O. Davis and Jackson, SEC: 2002: Nov. 26 , I.M.O. Patterson, SEC 2003: Sept. 23, and Advisory Opinion A03-01 that found a conflict because the board attorney might be inclined to render advice favorable to his client/board member as being unduly dependent on the prospective conduct of the attorney, a party over which the SEC had no authority. Dressel v. Speizer , SEC 2008: August 26. Noll v. Mott : Complainant alleges that by filing the OPRA request with Green Hills, the board member placed “undue financial hardship” on the District and that as result of this OPRA request, the superintendent and the Allamuchy School District have decided to opt out of shared services with Green Hills, thus creating a financial burden to the District. The Commission acknowledges the respondent’s argument that, as a citizen of this State, he has a statutory right under the Open Public Records Act to request records from a public agency. Also, the complainant offered no facts which might show that the filing of the OPRA request was related to the Allamuchy District’s decision or even that Allamuchy didn’t even know about the records request this decision. Luthman ---Wife employed as school nurse in Toms River Regional district—he voted in favor of the budget, rather than recusing himself, Complainant alleges that by so voting he approved the salary and benefits that his wife will receive, and also set the budget amounts for her department and her school and her supervisors. HELD : The District’s proposed budget is the amount that is determined as needed in order to meet its contractual, regulatory and statutory obligations. Absent any specific allegations that the proposed budget could have particularly impacted respondent’s wife’s employment ( e.g ., if his spouse was not a member of the local bargaining unit such that her salary terms and conditions were determined outside of the contract; or of his spouse was eligible to receive remuneration that was not included in her contractual salary or benefits; or his spouse could have been impacted by a proposed decrease in nursing staff), the Commission finds that although the respondent did have “a direct or indirect financial involvement” in the budget that was proposed, this involvement was simply too attenuated to find that it “ might reasonably be expected to impair his objectivity or independence of judgment .” The Commission specifically notes that where a budget is defeated by the voters and the Board is called upon to reformulate its budget, which may include transfers of staff and reductions in force, and where there is a reasonable likelihood of impacting the employment of a Board member’s spouse, that Board member may not be present for any such discussions or determinations. These facts, however, are not before the Commission in this matter. Also, that this record is devoid of any information to suggest that the proposed budget could have particularly impacted the employment of respondent’s supervisors,
- SEC determined that probable cause did not exist to credit allegations that board member acted in his official capacity in a matter in which he had an interest when he appeared at the school to discuss the discipline of a student (D) who assaulted his son, a middle school student. Gonzalez v. Petrozelli , SEC, 2008: Dec. 16. The board member’s wife was dean of discipline in the high school where the complainant’s son attended and her office had disciplined complainant’s son in the past for vandalizing her home. Several months later, (D) pushed the boy off bleachers. The mother (dean) called the principal and asked if he could meet with her and her husband (board member) as parents . Bd member took no action as a Board member and recused himself from any matter involving student discipline since his wife was the Dean of Students responsible for the discipline of students. No probable cause that he violated the Act. Since he was acting as parent, not board member, he didn’t have to “refer all complaints to the chief school administrative officer”
- Board policy on comments should be non-discriminatory as written and applied. Moore v. Asbury Park Bd. of Educ ., 2005 U.S. Dist. LEXIS 18372 (D.N.J. 2005)(not for publication). Content-neutral restrictions in board policy serving the purpose of maintaining fair and orderly expression were permissible, but court imposed injunction against provision that prohibited "personally directed" statements.
- Paff v. Monroe Twp. Bd. of Ed., Docket No L-11146-99 [unpublished Law Div. Jan 2007] (supra), directing that closed session resolutions “should contain as much information as is consistent with full public knowledge without doing any harm to the public interest.” Examples of balancing: in student discipline, students should not be identified; labor negotiations should be identified; specific litigation being discussed should be mentioned unless the mention alone would impact strategy or disclose confidential information. The general language indicating that the board would “personnel, negotiations, legal and student matters” was not sufficient. OPRA: Executive session minutes that have not been approved by the governing body prior to the OPRA request are exempt from disclosure as advisory, consultative, or deliberative material pursuant to N.J.S.A. 47:1A-1.1. See, e.g., GRC Complaint No. 2007-251, O’Shea , GRC, 2008: Feb. 27. However, the fact that the Township Attorney had not yet authorized the closed session minutes for release was not a lawful basis for a denial of access. Johnston v. Hillside , GRC Complaint No. 2006-202 (January 23, 2008). A governing body may not delay access by approving the release of such government records. Linda Janney v. Estell Manor City Custodian of Records , Complaint No. 2006-205, Decided January 30, 2008. Redactions of closed session minutes may be required.
- YYY. Used to be “at least one year’s notice”; now, board must only provide notification before the expiration of the first or any subsequent contract by a length of time equal to 30 days for each year in the term of the current contract. So for a 3-year contract, will required 90 days. A four year contract will require 120 days. Etc.
- June 22, 2009 — With little advance notice, the Assembly Education Committee this morning released two union-backed bills that would increase costs to taxpayers and undermine efforts to improve the quality of education, the executive director of the New Jersey School Boards Association said today. One bill would make it virtually impossible for schools to save money by contracting with outside businesses for operations, such as food services, maintenance and transportation. The other measure would drive up school district legal costs by making decisions not to renew the employment of non-tenured employees subject to arbitration. Both bills could be acted on by the full Assembly as early as Thursday. Subcontracting By restricting public school’ ability to hire private companies to provide non-instructional services, A-4140 (Oliver) would impede district efforts to direct limited resources into the classroom. The bill would force a school district to wait up to three years before it could use subcontracting as a way to address budgetary issues (can’t subcontract while existing CBA is in effect, must give union 90 days advance notice of desire to subcontract and give union opportunity to negotiate over the impact, and district must provide information to union about cost projections, etc. ) The bill requires the disclosure of various information regarding the subcontractor including proof of required insurance, a cost projection of at least three years, and criminal and disciplinary records and other information about subcontractor employees. The bill makes all actions of an employer regarding subcontracting, except for those expressly required or prohibited by the bill, mandatory subjects of negotiations. Each employee replaced or displaced because of a subcontracting agreement is deemed by the bill to be on a leave of absence during the period of the subcontracting and therefore retains all previously acquired seniority and has recall rights when the subcontracting terminates. “ Enactment of this legislation would close off a valuable financial tool that school districts use to control costs,” said Marie S. Bilik, NJSBA executive director. “It would make the subcontracting option no option at all. This legislation was a bad idea a decade ago, and it’s an even worse idea now that economic conditions are so bleak.” NJSBA conducted a survey of school districts when similar legislature was proposed in 1999 and 2002. The 250 responding districts reported saving more than $40 million of tax dollars by using subcontractors to provide cafeteria services, maintenance or transportation. In addition, the vast majority (94%) of districts that hired subcontractors said they made accommodations for existing employees. Such provisions included requiring subcontractors to hire or to guarantee interviews with displaced employees, offering severance packages, or privatizing positions only as employees left. Arbitration The other bill, A-4142 (Cryan), addresses disciplinary measures for non-tenured staff. It would place many decisions not to renew the contracts of non-tenured teachers into arbitration, driving up legal costs and making it even more difficult for school districts to remove under-performing staff. The change would take place at a time when the state is penalizing school districts for non-classroom expenditures. In addition, under the bill, determinations over disciplinary actions, such as withholding a teacher’s increment, would be made by labor arbitrators, who have no educational expertise. Moreover, even if the increment withholding were allowed, the amount of the increment would still count toward the teacher’s pension—an unusual provision, considering current concerns over the financial health of the state’s public employee pension system. “ The bill would make it far more costly and difficult to remove under-performing teachers before they are granted lifetime tenure,” explained Bilik. “A-4142 would throw additional obstacles in the way of school districts that attempt to employ the most effective teachers for their classrooms.” This bill provides that the terms of a collectively negotiated agreement will supersede the terms of any individual contract between any public employer and any individual public employee whose position is within the bargaining unit covered by the collective agreement. In addition to this provision, which applies to individual contracts of both educational and non-educational public employers and employees, the bill, with respect to only the educational sector: 1. makes binding arbitration the terminal step for the review of any imposition of discipline under collective bargaining agreements, extending that requirement to major, as well as minor, discipline, and extends the scope of collective bargaining to cover procedures for major, as well as minor, discipline; 2. provides that fines and suspensions levied under a contract or an arbitrator’s award do not constitute a reduction in compensation for pension purposes; 3. extends binding arbitration and contractual grievance procedures to cover disputes over the withholding of increments for any reason, instead of just for predominately disciplinary reasons; 4. provides an arbitrator, in cases of discharge, termination or contract non-renewal, with the authority to order remedies which include reinstatement with back pay and benefits; and 5. amends the definition of "employer" to include county colleges, county vocational school districts, and charter schools.
- Under proposal the specific procedures are only for districts who have legal costs > 130 % of statewide p.p. average; currently applies to all districts. If district legal costs > 130% of statewide p.p. average, district must: Establish limit on number of contact persons Provide criteria to avoid unnecessary use where info is otherwise available Require that all requests be made in writing, maintained in district file Process to determine if request warrants legal advice Require log of counsel contact (atty’s name, date, issue discussed, length of contact.) Bills must be compared to log; variances investigated & resolved.
- Payment restrictions — No advance payment, contract must detail services, payment only for services actually provided, invoices must itemize services provided during billing period Contracts - issued in a deliberative and efficient manner that ensures highest quality services at a fair and competitive price –example, RFP based on cost and other specified factors or other comparable process No individual use- - where recovery would benefit an individual rather than district as a whole
- The proposed readoption clarifies promotions, and adds a hardship exception. Grandfathering for current employees A provision prohibiting any relative of a school board member or chief school administrator from being employed in an office or position in that district except that (a) a person employed by the district on the effective date of the policy or the date a relative becomes a school board member or chief school administrator shall not be prohibited from continuing to be employed or to be promoted in the district , and (b) a district may employ a relative of a school board member or chief school administrator provided that the district has obtained the approval from the executive county superintendent of schools. Such approval shall be granted only upon demonstration by the school district that it conducted a thorough search for candidates and that the proposed candidate is the only qualified and available person for the position ;
- Also, administrator can’t be present in closed session when negotiation strategies are being discussed; but may serve as a technical resource when no one else in the district can provide such information
- including, but not limited to, being a member of the negotiating team or being present with the school board in closed sessions when negotiation strategies are being discussed, prior to the school board attaining a tentative memorandum of agreement with the bargaining unit that includes a salary guide and total compensation package; once the tentative memorandum of agreement is established, a district administrator with an immediate family member who is a member of the same Statewide union in another district may fully participate in the process, absent other conflicts. TECHNICAL RESOURCE EXCEPTION necessary to the collective bargaining process when no one else in the district can provide such information
- The school accountability regulations survived a legal challenge last week when a state appeals court ruled that the education commissioner has the authority to implement rules on nepotism and leave time.On Sept. 2, the Appellate Division ruled in New Jersey Association of School Business Officials v. Davy that the commissioner has the authority to adopt administrative code limiting the payment for unused sick and vacation leave to school business administrators, and to condition the receipt of state aid to school districts on their adoption of a nepotism policy.The state Association of School Business Officials, NJASBO , charged that Commissioner Lucille E. Davy overstepped her authority and alleged that the regulations conflict with state statute. However, the appellate court said the commissioner was given broad rulemaking authority under a series of 2007 laws designed to increase oversight, transparency and efficiency in education. The court described the Legislature’s effort to reduce property taxes, and specifically noted a 2006 State Commission of Investigation (SCI) report that described “questionable and excessive” practices costing taxpayers “millions of dollars,” which the SCI partly attributed to the private negotiation of employment contracts for public school administrators without state or county oversight. Leave Provisions Upheld NJASBO asserted that neither school business administrators nor any other school employees were covered under the law limiting payment for unused sick and vacation leave. NJASBO noted that the law did not apply to people hired or appointed in the “regular or normal course of employment or appointment procedures.”The appellate judges said the Legislature would not have adopted a law affecting no one, and further ruled that business administrators do not fall under the exclusion for those appointed in the “normal course of employment” because their appointment involves agreement by the county superintendent of schools and approval by the commissioner and the State Board of Education. However, beyond school business officials, the court declined to decide just which officers and employees were covered under the sick and vacation provisions. The appellate panel also rejected NJASBO’s contention that restricting the payout of sick and vacation leave violates the tenure protections enjoyed by business administrators, noting that the restriction only applies prospectively and has no impact on rights under prior contracts. Nepotism Rules Intact The court also determined that requiring a nepotism policy as a condition of funding is “reasonably necessary” and “appropriate” to effectuate the Legislature’s intent in the School Funding Reform Act of 2008 , which granted the education commissioner the authority “to take any affirmative action as is necessary to ensure the effective and efficient expenditure of funds…” The court rejected NJASBO’s contention that the nepotism regulation that bans the hiring of a relative of a school board member or superintendent conflicts with School Ethics Commission decisions that, under the same circumstances, allow board members to avoid an ethics violation by recusing themselves.Impact While the accountability regulations survived this legal challenge, a second challenge filed by the New Jersey Association of School Administrators has not yet been considered by the court. Meanwhile, the state Department of Education has proposed revisions to the regulations and has solicited public testimony. While those revisions have not been finally adopted, the department has said it will make them retroactive to July 1, 2009. Unless a court voids any portion of the regulations, school boards should assume that the accountability regulations will be fully enforced.