Microsoft Word - board-governance-outline.doc

New Jersey

School Boards Association

Headquarters: 413 West State Street, Post Office Box 909, Trenton, New Jersey 08605-0909

Telephone: 609-695-7600 Toll Free: 1-888-886-5722 Fax: 609-695-0413 Web site: www.njsba.org

BOARD GOVERNANCE - LEGAL ISSUES – 2014

NJSBA Legal Department

I. Meetings: Frequency, calling and canceling

A. N.J.S.A. 18A:10-6. Board must meet at least once every two months during the period

in which schools are in session. Meeting must start not later than 8 p.m. but if no quorum,

may recess until 9 p.m. If no quorum, may adjourn to day not more than seven days

following original date. Public announcements must be in accordance with the Open

Public Meetings Act (Sunshine Law). Public notice must include the date, time, location, and

purpose(s) of the special meeting.

B. The board secretary gives notice of all regular or special meetings to the board

members. N.J.S.A. 18A:17-7

C. Board secretary has duty to call a special meeting whenever: requested by the president

of the board; requested by the chief school administrator when the district board of education

fails to meet within two months during the period in which the schools in the district are in

session; or whenever the board secretary is presented with a petition signed by a majority

of the full membership of the board requesting the special meeting. N.J.A.C. 6A:32-3.2

Nothing contained in this document should be construed as legal advice. This document

is for informational purposes only. Please consult your board attorney for legal advice.

D. Law does not address how to cancel a meeting. Presumably, board president has

ability to cancel the meeting, or by petition signed by majority of board. Notice

requirements of Sunshine Law should be followed; however, if not possible

because of emergency such as snow, best efforts should be made to provide

notice, and notice of cancellation should be placed on door.

E. Open Public Meetings Act and Technology—Can the board meet through the use

of a telephone conference call or other technology? See, Open Public Meetings

Act and Technology (7-01)

F. Boards of education, like municipal governing bodies, are required to set aside a

portion of every meeting of the board for public comment on any governmental or

school district issue that a member of the public feels may be of concern to the

residents of the school district. The board may determine the length of the portion.

N.J.S.A. 10:4-12.

II. Organization: N.J.S.A. 18A:10-3, 4, 5

A. For districts with April elections, organization must be held at regular meeting not

later than 8 p.m. on any day of the first or second week following the annual

school election.

B. In districts with appointed boards, organization takes place on May 16 or on the

following day if that day is Sunday.

A. For districts with November elections, organization must be held not later than 8

P.M. on any day of the first week in January. The Department of Education has

interpreted that to require organization take place between January 1 and January 7.

B. If no quorum, must take place within three days thereafter.

Constitutes regular meeting for transaction of business

C. If the organization meeting cannot take place during this period due to the lack of a

quorum or for any other reason, the organization meeting shall be held within three

days thereafter .

New members “shall take office” at organization meeting; prior to taking office

board member shall be sworn in. In the case of a Type I school district the oath

shall be filed with the clerk of the municipality and in all other cases it shall be

filed with the secretary of the board of education of the district. N.J.S.A. 18A:12-

2.1.

N.J.S.A. 41:2-1 Oath may be taken by state and municipal judges, mayors,

surrogates, county clerks, municipal clerks and clerks of board of chosen

freeholders, sheriffs, members of boards of chosen freeholders, clerks of all

courts, notaries public, commissioners of deeds, members of the State Legislature,

attorneys of New Jersey and certified court reporters.

N.J.S.A. 18A:17-11 The board secretary may administer oaths in relation to the

school matters of the district in which he is employed.

May be taken out of state by notary of state where taken. N.J.S.A. 41:2-17.

Recital of notary’s designation should be included in certificate of oath with

official designation/seal next to signature, is proof.

Ethics opinion: No violation for being sworn in by attorney who is a friend.

Lester, C17-97, 3/30/97.

E. Election of vice president, president takes place at organization meeting- N.J.S.A.

18A:15-1. “Shall serve for one year and until their respective successors are

elected and shall qualify.” If board fails to elect officer at organization, county

superintendent appoints.

See, also N.J.S.A. 18A:13-12 (regional school districts “who shall serve until the

organization meeting next succeeding the election of their respective successors

as members of the board”)

Martello v. Willingboro Bd. of Ed., 1975 S.L.D. 1025

! Where there are more than two candidates, a plurality of votes

suffices.

! When board fails to elect officer at organization meeting, it loses

its authority to elect at a later meeting.

Duties of board president: signs warrants in payment, along with board

secretary N.J.S.A. 18A:19-4, N.J.S.A. 18A:49-5; certifies payroll N.J.S.A.

18A:19-9. Other duties as set forth in bylaws, policy, Roberts Rules (e.g.,

may help develop agenda, spokesperson for board, makes sure meetings

run efficiently.)

F. Removal of vice president, president. N.J.S.A. 18A:15-2

May be removed by majority of board if refuses to perform duty imposed by law.

If office or president or vice president becomes vacant, board must fill vacancy

within 30 days; if not, county superintendent shall fill for unexpired term.

The board may appoint a temporary officer to act during the absence, disability or

disqualification of the officer.

Succession to office – Board policy, Roberts Rules – If no policy, vice president

succeeds to office. N.J.S.A. 18A:16-1.1.

G. What can a lame duck board vote on?

Nowak v. Manville Bd. of Ed., 1976 S.L.D. 43. Only routine administrative

matters (confirmation of purchase orders, filling of known teaching vacancy,

approval of use of facilities). Cannot bind future board in matters such as

awarding stipends or salary increments for the succeeding school year, fixing

salaries of principals, superintendents, board secretary for succeeding school year,

making appointments to positions in which no known vacancies exist. (Note: Case

involved short lame duck period that existed in April election; query how this

ruling may apply during long lame-duck period when school elections take place

in November with swearing in not until January.)

H. Committee members: appointment; removal.

Not expressly addressed by 18A. Board should follow own bylaws. Bylaws may

require board president to appoint.

Roberts Rules says that unless the bylaws require committee member to serve

until successor is chosen or for a fixed period, then committee members may be

removed by board president if president appoints the committees. If committees

are formed by vote of the body, the body may remove as motion to rescind or

amend.

Providing due process (notice and informal hearing), may insulate decision to

remove from challenge.

G. FAQ on Board Organization 2013-2014

III. Removal of board members by the board.

A. Removal of board members by the board for missing three consecutive meetings.

N.J.S.A. 18A:12-3 states that a board member who “fails to attend three

consecutive meetings of the board without good cause may be removed by it.”

! Includes all meetings (special, regular, emergency)

Berg v. Blackhorse Pike Regional School District, 1981 S.L.D. (March 3).

B. Board member must be given opportunity to present evidence to the board as to

whether the board member had good cause for missing the meeting. Shamong

Bd. of Ed. v. Chwastek, 1985 S.L.D. ( July 8).

! Board of education makes determination of good cause. Board member

may appeal that decision to the Commissioner of Education. Won’t be

overturned unless arbitrary and unreasonable.

! Commissioner has noted that the law is not clear regarding whether a

board member who has been removed by the board must justify a good

cause for all of the meetings missed, or only for one that would break the

chain of consecutive meetings. Smith v. Hazlet, 1999 S.L.D. (March 8),

withdrawn 1999 S.L.D. (August 18).

C. Decisions

1. Cohen v. Durr, 2001 S.L.D. (June 22), decision on remand from 2000

S.L.D. (Dec. 28). Board member undergoing divorce found to be bona

fide resident and qualified as board member under N.J.S.A. 18A:12-2 even

though he does not always stay overnight at the marital home. No

evidence of intent to change residence.

2. Settle v. Pennsville Bd. of Ed. and Pennsville Education Association, 2001

S.L.D. (April 26). Commissioner is without jurisdiction to determine whether

the board could consider a grievance filed by the association seeking the

removal or discipline of a board member for her involvement in a dispute over

a student’s grade because Commissioner has no authority to interpret

collective bargaining agreements. Moreover, Commissioner has no

jurisdiction to address alleged Open Public Meetings Act violations since

alleged violations not ancillary to a school law issue.

3. Bd. of Ed. of the Borough of Berlin v. Lee, 2002 S.L.D. (June 14)

Board member who filed Notice of Tort claim against the school district

disqualified from board membership. Board filed Declaratory Judgment

action.

D. See NJSBA policy, File Code 9114

Supports amending law to allow boards to remove board members for failure to

attend 2/3 of the meetings annually, without good cause.

IV. Resignation of Board members

A. What is required for a board member to effectively resign?

A board member cannot be compelled to serve. Therefor, if a resignation is

clearly communicated to and received by a board, it is effective, even without a

formal vote by the board and even if the board’s ordinary practice 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 clearly

communicated and received by a board, a vacancy has been created. The board

may fill the vacancy as provided for in statute. (see Section V)

V. Filling board vacancies N.J.S.A. 18A:12-15

A. How are they filled?

In most cases, a vacancy is filled by a majority vote of the remaining members of

the board after the vacancy occurs. The board has 65 days to fill the vacancy; if it

does not meet deadline, county superintendent will fill vacancy.

Exceptions:

1. Filled by county superintendent if caused by absence of candidates or by

removal of member for lack of qualifications.

2. Filled by county superintendent if quorum is lacking because of vacancies

3. Filled by special election if tie in annual election - within 60 days of

school election - restricted to those candidates. If tied again, filled by

county superintendent.

4. Filled by special election if failure to elect at school election due to

improper election procedures - within 60 days of school election,

restricted to same candidates. If tied again, filled by county

superintendent

5. Filled by Commissioner if failure to elect due to improper

campaign practices.

B. How long does a board member serve, who is appointed to fill a

vacancy?

It depends on when the vacancy occurs:

On board with April elections: If vacancy occurred within the 60 days

immediately preceding election, to fill a term extending beyond such election, the

appointee serves until organization meeting following the second annual election.

The remainder of the term is filled at the second annual election.

If vacancy occurred prior to the 60 days immediately preceding election, serves

only until organizational meeting following next election. Remainder of term if

any, is filled at that next election.

On board with November elections: If vacancy occurred after third Monday in

July, to fill a term extending beyond the next election, the member so appointed

shall serve until the organizational meeting following the second annual election.

The remainder of the term is filled at the second annual election.

If the vacancy occurred prior to the third Monday in July, serves only until the

organizational meeting following the next election. Remainder of term, if any, is

filled at that next election.

C. What procedures must a board follow in filling the vacancy?

Procedures are established by board policy. Policy issues to be considered

include advertisement, solicitation of resumes, interviews, deliberations, OPMA

issues.

VI. Board voting

A. All actions require a majority vote of the quorum, unless a particular statute

requires a greater number of votes.

See, Voting Requirements for Board Members (10-09)

Some examples:

Majority of the quorum: Examples: Vote to ratify a collective bargaining

agreement, adopt policy, approve bills.

Majority of the full membership of the board: Vote to appoint teachers and

administrators, to adopt the budget, and to withhold the increments of a teaching

staff member.

B. Board may not require supermajority vote unless statute specifically provides;

thwarts will of majority to require a greater vote than required by statute.

Matawan Teachers Ass’n v. Bd. of Ed., 223 N.J. Super. 504 (App. Div. 1988)

However, there have been rulings in which a supermajority vote has been required

even without explicit statutory authority in matters involving Superintendent

personnel issues. See, Negron v. Board of Education of South Plainfield, No. A-

4406-10T1, 2012 N.J. Super. Unpub. LEXIS 2634, (App. Div. December 3,

2012)(extension of contract); Caffrey v. Perth Amboy, Commissioner, May 8,

2012 ( administrative leave)

C. In sending- receiving districts, the sending representative may vote only on

certain matters. (see, Section VII below.)

The number of board votes required to pass a motion will be based on the number

of members eligible to vote on a particular matter, which may or may not include

the sending representative (s).

VII. Sending Representation on Receiving Board

A. N.J.S.A. 18A:38-8.2

B. Special legislation N.J.S.A. 18A:38-8.4 (Ocean City/Upper Township)

C. English v. Boonton Bd. of Ed., 301 F.3d 69 (3

Cir. 2002). United States Court

of Appeals for the Third Circuit rules that the statutory representational voting

scheme was not unconstitutional as applied to the sending-receiving relationship

between the Lincoln Park and Boonton boards. Under the statutory scheme,

Lincoln Park was entitled to one representative on the Boonton Board, although it

provided 52% of the high school's combined student population and 56 % of the

combined resident population of the two towns during the 2001-02 school year.

The Court held that New Jersey has legitimate reasons (e.g., possible severance of

the relationship; lesser vested interest in the long-term affairs of the Boonton

school district; agenda items affect schools not attended by Lincoln Park’s

students) for limiting the representation of Lincoln Park in the Boonton Board's

decisions

This case reverses a federal district court’s earlier determination that the statute,

as applied to the Lincoln’s representation on the Boonton Board, violates the

constitutional principle of "one person, one vote." See, English v. Boonton Bd. of

Ed., 135 F.Supp.2d 588 (D.N.J. 2001). See also, English v. Boonton Bd. of

Ed., 161 F. Supp. 2d 344 (D.N.J. 2001) wherein the federal district court

established a two-tiered voting structure, under which the sending district would

have 4 representatives, each with 2.5 votes; on high school issues the sending

district would have the majority of votes under a weighted voting scheme.

Remedy to remain in effect until New Jersey Legislature amends the statute. Stay

granted – Court of Appeals 9/24/01.

D. Branchburg Bd. of Ed. v. Board of Education of Somerville, No. 98-5557 (AET)

(Consol.) (D.N.J. September 7, 2000) New Jersey’s formula for sending districts’

voting representation on receiving district boards of education is unconstitutional

as applied to the sending-receiving relationship between the Somerville and

Branchburg Township boards. Court asks that within 60 days Commissioner

recommend a constitutionally permissible manner for resolving the problem, until

Legislature formulates a legislative solution.

See, also, Branchburg Bd. of Ed. v. Bd. of Ed. of Somerville, et al., Nos. 98-5557

(AET) and 99-822 (AET) (Consol.) (D.N.J. May 22, 2001).The Commissioner

failed to recommend a constitutionally permissible manner for resolving the

voting representation problem nor could the parties reach a standstill agreement.

Court ordered remedial plan be implemented whereby Branchburg would appoint

six (6) members to the Somerville Board, each with one vote, giving Branchburg

control of 40% of the votes on matters affecting their high school students while

enabling Somerville to maintain a majority vote. Somerville's motion to stay the

remedial plan was denied because Somerville maintains majority vote and may

continue to operate the district. No irreparable harm demonstrated. Appealed to

Third Circuit Court of Appeals. The parties were asked to submit briefs on the

question of whether the Third Circuit’s ruling in English v. Boonton (above)

should be followed.

Branchburg Bd. of Ed. v. Bd. of Ed. of Somerville, et al., 312 F.3d 614 (2002).

Third Circuit Court of Appeals rules that English does apply regardless of

whether or not district can withdraw from sending-receiving relationship. Court

determines that the interim relief that was granted was improper as the send-

receive statute was a rationally-based constitutional statute.

VIII. Voting in sending-receiving districts

A. Sending district’s representative is permitted to vote on the following items listed

in N.J.S.A. 18A:38-8.1

1. Tuition charged to sending district, and bill lists or contracts for purchase,

operation or maintenance of facilities, equipment and instructional materials

to be used in the education of the pupils of the sending district.

2. New capital construction to be used by sending district pupils.

3. Appointment, transfer, or removal of teaching staff members providing

services to pupils of the sending district, including teaching staff members

who are members of the receiving district’s central administrative staff.

4. Addition or deletion of curricular and extracurricular programs involving

pupils of the sending district.

5. Voting is limited to the statutory items.

The Appellate Division has disapproved of the Commissioner of Education’s

earlier position that a sending representative may also vote on procedural

matters, such as election of board officers and those related to “the orderly

conduct of Board operations.” See, Evans v. Atlantic City, 404 N.J. Super. 87

(December 10, 2008) 960 A.2d 768 (App. Div. 2008). Sending district

representatives are ineligible to vote on appointment of receiving district's

solicitor, because it is not expressly authorized by statute, N.J.S.A. 18A:38-

8.1. The Legislature intended to limit the eligibility of sending district’s

representative to vote to those matters expressly stated in statute. (See

particularly Footnote 1)

B. Although the sending district’s representative may not vote on issues other than those

listed above, the representative may:

1. Participate in discussions of all issues, even those on which he/she has no vote

(however, it is improbable that the appointee will find need to participate in

discussions of issues on which he has no vote).

2. Receive copies of information distributed to other board members.

C. The sending district’s representative may not disclose confidential information to the

other members of the sending board.

1. He/she may communicate confidential items freely with the sending district’s

superintendent, who is required to maintain strict confidentiality.

2. The representative may communicate non-confidential information to 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. (July 24); Green

Twp. Bd. of Ed. v. Newton Bd. of Ed., 1997 S.L.D. (August 5).

IX. Appointments

A. General rule: A board may not vote to appoint for a position that will not be 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 is proper only where the board making

the appointment is still in office when the vacancy occurs; otherwise, the present

board has no right to interfere with the rights of a successor board to make that

decision.

B. When can your board appoint a new superintendent?

1. Gonzalez v. Elizabeth Bd. of Ed., 325 N.J. Super. 244 (App. Div. 1999) A

school board may not appoint a new superintendent whose term begins only

after a successor board is sworn in.

Example: If superintendent has a 3-year contract that expires July 1, 2014, notice

of non-renewal must be given according to N.J.S.A. 18A:17-20.1 (i.e., given prior

to the contract’s expiration by 30 days for each year in the term of the current

contract ). But only the board as constituted at January 2015 organization

meeting (for the November 2014 election) or the April 2015 organization meeting

(for the April 2015 election) election may fill the vacancy. Appointment is made

through a recorded roll call majority vote of the full membership of the board.

N.J.S.A. 18A:17-15.

C. Other Superintendent Appointment issues

1. Dunn v. Elizabeth Bd. of Ed., 96 N.J.A.R.2d (EDU) 279, aff’d St. Bd. 96

N.J.A.R.2d (EDU) 285. Superintendent may under N.J.S.A. 18A:27-9 be

relieved of his duties for remainder of contract but may not be reassigned. Board

may employ “acting” superintendent for remainder of contract period, but new

appointment may not be made until after contract expires.

2. 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 agree to extend an existing contract but the contract may not

run more than a total of five years from its start.

! Parties may agree to rescind superintendent’s contract prior to its

expiration, and enter into new contract of 3-5 years; board must provide

clear public notice of its intentions to rescind the old contract.

3. The Executive County Superintendent must review employment contracts for

superintendents, assistant superintendents and school business administrators,

prior to the board’s approval and execution of the contract. N.J.A.C. 6A:23A-3.1.

Also, public notice and a public hearing are required pursuant to N.J.S.A.

18A:11-11 when the board renegotiates, extends, amends, or otherwise alters the

terms of an existing contract with a superintendent of schools, deputy

superintendent, assistant superintendent, or school business administrator.

Notice and public hearing are not required for new contracts (as opposed to

alterations of existing contracts). Accordingly, new contracts that replace expired

contracts for existing employees do not require notice and public hearing.

Note that where a superintendent is relieved of his duties pursuant to a “buy-out”,

the pay may not exceed 3 months’ pay for every year remaining on the

contract, according to the limitations contained in N.J.S.A. 18A:17-20.2a and

N.J.A.C. 6A:23A-3.2

4. “Ricing” the CSA: Persi v. Woska (Dec. 11, 2013)—Appellate court remands

issue of whether a board member exceeded the scope of his authority by

unilaterally directing the issuance of the Rice notice to the Chief School

Administrator. Earlier ethics ruling did not clearly delineate the respective

authority of a board member, board president, and full board in determining how

and when a school superintendent's employment is reviewed.

C. Decisions

1. Howard v. East Orange Bd. of Ed., 2001 S.L.D. (June 5), aff’d St. Bd.

2001 S.L.D. (Nov. 7), emergent relief denied, 2002 S.L.D. (Feb. 6), aff’d

No. A-1699-01T1 and A-2584-01T1 (App. Div. Oct. 11, 2002)

Failure to renew superintendent’s contract before July 1 or give notice of

non-renewal pursuant to N.J.S.A. 18A:17-20.1, triggered new contract

with same provisions as expired contract including 5% salary increases.

2. Kohn v. Vineland Bd. of Ed., 2001 S.L.D. (Sept. 14), aff’d in part and

rev’d in part, St. Bd. 2002 (Nov. 6)

Board of Education acted illegally in buying out superintendent’s five-

year contract for 33.3% of salary, and placing him in another position with

a lesser salary, notwithstanding contract clause so authorizing. Board

ordered to pay full value of contract less monies superintendent earned

from new job he received in another district during same period.

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. 6A:10-8.1.

1. Board of education can only renew an employment contract if the CSA so

recommends, and then by recorded roll call majority vote of full board.

2. However, even if the CSA does not recommend renewal, and the employee is

notified by the CSA of nonrenewal, the board is not foreclosed from renewing the

contract of such an employee. The board may renew the employment if the

employee requests a written statement of reasons and an informal appearance

before the board, during which the employee convinces the board to offer

reemployment.

5. On the other hand, even if the CSA recommends reemployment to begin with,

the board need not renew, as long as its decision is not arbitrary and unreasonable

(“capricious”). See, Mc Ewan v. Bloomingdale Bd. of Ed., 2002 S.L.D. (March

13) (board did not act arbitrarily in denying renewal of contract

notwithstanding a recommendation from the superintendent)

Nonrenewal & RIF FAQ 2013 (5-13)

4. These provisions requiring the superintendent’s recommendation apply to renewal

of employees except for treasurer of school money, election officer, board auditor,

board attorney, and board secretary who does not perform SBA functions.

XI. Access to Personnel Records

A. Public Access: The public has limited access to personnel records.

1. Open Public Records Act, N.J.S.A. 47:1A-1 et seq., P.L. 2001, c. 404. Go to

www.nj.gov/grc for more information.

2. Executive Orders 21 (social security numbers) (McGreevey) and 26

(McGreevey) (resumes; addresses and phone numbers forwarded to Privacy

Study Commission)

B. Board Member Access:

1. Horner v. Kingsway Regional, 1990 S.L.D. 752.

! Applicants: Board members may access official files of all applicants for

employment.

! Employees: Board members may access personnel files of those

employees recommended to the board for specific employment action “to

the extent that such files are relevant to the specific action to be taken or

deemed pertinent by the CSA in response to the Board’s directive to

provide information essential for performance of a specific, officially

assigned Board duty.”

2. Beatty v. Chester Bd. of Ed., 1999 S.L.D. (August 31).

Board may not limit access only to those candidates considered by

personnel committee. May place reasonable restrictions on times and

places for review of material.

3. Ciambrone v. Bloomingdale Bd. of Ed., 2000 S.L.D. (May 7)

Access to personnel materials: Board must ensure that individual board

members’ access to personnel information is confined to that necessary for

the performance of essential board member duties; however,

Commissioner has no jurisdiction over teacher’s invasion of privacy claim

for sanctions against individual 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-criminal action

or other legal proceeding has been brought against a board member for an act “arising

out of and in the course of the performance of his duties as a member of a board of

education” … “the board of education shall defray all costs of defending such action,

including reasonable counsel fees and expenses, together with costs of appeal, if any, and

shall save harmless and protect such person from any financial loss resulting therefrom.”

In criminal or quasi-criminal matters, the board of education shall defray the costs if the

final disposition of the action is favorable to the board member.

P.L. 2001, Chapter 178, Effective 7/26/01

! Castriotta v. Roxbury Twp. Bd. of Education, 427 N.J. Super. 592 (App.

Div. 2012) The Appellate Division, reversing the Commissioner’s

determination, ruled that a board member was entitled to be indemnified

for her costs in fighting the board’s action to censure her. The board

member’s challenge to the censure was a "legal proceeding" under the

indemnification law, N.J.S.A. 18A:12-20, because the board acted in a

quasi- judicial capacity, and the process was similar to a due process

hearing.

! Matthews, Commissioner 2010:April 15. Proceedings under the Code of

Ethics for School Board Members are administrative proceedings which

do not require favorable disposition for the charged party to be eligible

for indemnification. However, the particular actions on which the

allegations are based must be scrutinized – consistent with prior case law

as to time, place and subject matter – in terms of the statutory standard of

“arising out of and in the course of the performance of his duties as a

member of the board” in order to determine the entitlement to

indemnification. A complaint under the Code of Ethics for School Board

Members poses unique difficulties, since these complaints frequently

involve many diverse allegations rather than claims arising from a single

act. Matter remanded to the OAL to determine eligibility for

indemnification.

! Florham Park Bd. of Ed., v. Utica Mutual Insurance Co., 172 N.J. 300

(2002). In criminal matter, board’s liability to indemnify was not triggered

until acquittal; only the insurer whose insurance policy was in effect at

time of acquittal was liable.

! Grant v. Green Brook Board of Education, 2001 S.L.D. (August 13), aff’d

State Board, 2001 S.L.D. (Dec. 5). Indemnification denied for board

member who was sued for slander by private citizen, for making

knowingly false statements about the citizen (saying that citizen was a

racist, a nazi, and under investigation by the Department of Justice); board

member was not acting in his official capacity when he made the

comments; was personal, political activity and the resultant civil suit was,

similarly, personal unto him.

! Quick 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 to

exclude her from attending certain closed door meetings, was entitled to

reimbursement for legal expenses. Was sued by reason of her board

membership.

! Errington v. Mansfield Bd. of Ed., 100 N.J. Super. 130 (App. Div. 1968)

Board member was not entitled to reimbursement of legal fees for

defending defamation lawsuit brought against him for publishing allegedly

defamatory letter; letter was not an act “arising out of” duties of board

member.