Tuesday, November 13, 2012

BOE Conflicts of Interest?

A Potsdam resident asked me to respond to the following "Sound Off" comments that were recently included in North Country Now.


Potsdam Board of Education conflicts

Friday, November 9, 2012 - 1:48 pm
On a board of education, should it not be considered a “conflict of interest” when the board members have a daughter, wife or other relative working at the school? Does this not open up the school to be run by a dictatorship? If the board members are afraid of their loved one being harassed or losing their job, they may not stand up to a corrupt administration.

My Response:
  1. Unfortunately, according to NY General Municipal Law and NYS Education Law, it is not a conflict of interest to serve on a board of education if one has a spouse or dependents in one of the unions in the school district. However, anyone with common sense can see that this law needs to change.
  2. These are some thought-provoking questions about having spouses serve on Boards of Education:
  • Should it become, by law, a conflict of interest? Yes. 
  • Does it compromise the decision making ability of such Board members? Yes. Definitely.
  • Does it give the Board's only employee, the superintendent, undue influence over such Board members? Yes.
  • Conversely, does it give the employee (whose spouse is on the BOE) undue influence over the superintendent? Yes. Several years ago, such a spousal employee made a request of her principal. It was refused by the superintendent. This employee complained to her BOE husband, who leaned on the BOE president, who leaned on the superintendent of schools, who then, reluctantly, reversed himself on the decision. This is but one example of how the presence of an employee's spouse on the Board creates special favors for the employee and undermines the authority of the superintendent. 
  • Does it compromise the Board's ability to negotiate contracts? Yes. PCS board members, who have spouses in one of the district's unions, will personally receive contract benefits. How can they negotiate on behalf of the public's interest when they will benefit from acquiescing to union demands at the negotiations' table? 
  • Why is this legal? Politics. 
  • What can be done about it? Lobby politicians to make it a conflict of interest to serve on  Boards of Education if one's spouse or dependent family member is in one of the unions in the school district.
     My thoughts are backed up by others. For instance, Ted Biondo blogged about the issue of whether being on a BOE and having a spouse as a teacher in the school district constitutes a conflict of interest. He wrote:

     "Many would believe that if this relationship is not a conflict of interest, what is? What actions should the board member take when issues such as salary negotiations and payroll, that benefit both the spouse and the board member’s income, come before the board for action?

     Even if the board member abstains from the vote on issues that directly benefit them monetarily, one would believe that the member must also refrain from deliberations with other board members that might influence their vote. In abstaining is that board member adequately representing their subdistricts on issues that might affect those constituents, such as reduction in programs versus union concessions to reduce deficits?

     The Illinois Education Association’s opinion is that members of the board of education in the state of Illinois are considered to have a conflict of interest in the position of board member, only when their spouse is directly impacted as an individual, not when it affects all the members of the union, such as across the board raises or benefits, even if the board member has pecuniary interest in the outcome.

     An investigation of Attorneys General opinion in the state of Illinois on this issue reveals that on April 30, 1976 William J. Scott, Attorney General’s opinion was that, 'considering then whether the board member has a conflict of interest, I am of the opinion that he does, and have advised in other contexts that the interest of one’s spouse may be attributed to one’s self and be a prohibited interest.'
'There is a natural and probable sharing of assets between spouses. This probability of sharing is sufficient to create a conflict of interest in this situation.'"

     In NYS a BOE member's pecuniary interest in the salary and benefits of his/her spouse (who is a member of a union in the self-same school district) is not considered a conflict of interest. Is it in the interest of the public to change the law? Absolutely, but don't hold your breath waiting for the right thing to happen.

                                                                    ***


For additional information see the NYS Education Dept. website at:
http://www.regents.nysed.gov/about/statement_governance.html

Nepotism

Inherent in a trustee’s/board member’s fiduciary duty of loyalty is the responsibility to avoid nepotism in hiring, purchasing and other institutional decisions.  Care must be taken at all times to ensure that family and/or personal relationships do not inappropriately influence a trustee’s/board member’s decision-making.  Any decisions that are based on personal/family influence rather than the best interests of the institution constitute a breach of fiduciary duty and may result in a trustee’s/board member’s removal from the board.  Institutions should adopt and enforce policies prohibiting impermissible nepotism in hiring and other institutional business including provisions for disclosure of such interests and recusal from voting.  In the case of school districts, BOCES, and public libraries such policies must be consistent with the provisions in the General Municipal Law, which permit a trustee/board member to vote on employment contracts for spouses, minor children and dependents, and the Education Law which requires a 2/3 vote of a board of education to employ a teacher who is related to a board member by blood or marriage.  To ensure legal consistency, anti-nepotism policies and provisions should be reviewed and discussed with the institution’s attorneys and auditors prior to adoption.


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