Conflict of Interest and appointing a proxy

Short Version:
If you are barred by a judge’s ruling from serving on a public Board due to a conflict of interest, can you appoint someone to take your place and no longer have that conflict of interest?

Long Messy Version:
A little background, my town does not have an elected Board of Education, the BOE is appointed by the Mayor, who is otherwise just a “first among peers” member of the Town Council. The town also has a Board of School Estimate, the BOSE reviews and approves the annual school budget, and is made up of the Mayor, 2 members of the BOE and 2 Town Councillors.

One of our current Councillors is a teacher, and a VP of the NJEA, the state wide teacher’s union, which our local teacher’s union is a part of. This Councillor, ‘S’ served on the BOSE until there was a lawsuit a few years back and a judge ruled that he could not serve on that board because of a conflict of interest. That conflict being, of course, the fact that the school budget he votes on is deeply connected with his job as VP in the union.

Fast forward to today… S is running for Mayor. He is still VP of the union. If he wins, he will have sole responsibility for appointing the entire BOE. He will also have two of those appointees on the BOSE, and he himself be a member of the BOSE (he says he will appoint someone rather than serve on that board). This would result in him having the ability to choose the majority of a board he is legally barred from serving on himself.

I foresee a legal quagmire if he wins, but I was wondering if there is any generally settled law where someone who has already been ruled to have a conflict of interest, can simply appoint people to vote in their place.

This might be a state-by-state issue. I’d check your specific state law. That whole setup as you describe it seems odd to me.

My fist question was “where does he teach”, but I found out he does not teach in the school district. But before you even get to “can someone who has a conflict of interest simply appoint someone in their place” the first question that has to be answered is whether someone who holds a position ex-officio can appoint someone in their place under any circumstances. And my guess is that they cannot - the whole point is that you automatically hold position A because you hold position B.

thorny locust, you are right, the whole setup is odd, we are one of a handful of NJ municipalities with this structure. The final oddity is that our elections are in May, yesterday in fact! Early results of the mail in vote suggest that S will be the winner, so it looks like I’ll have a ringside seat to this legal rodeo.

Maybe this situation will be an impetus for a re-alignment of your system’s leadership. As a city council member this whole setup makes me cringe!!! :-o

I wonder if that’s a significant part of the reason that school districts in this area tend to ignore city borders for the most part, and even county borders occasionally.

I think most school districts ignore city and/or county borders. The situation in Cheesesteaks’s city goes beyond having the same borders as the city - the Board of Education is not independently elected, but appointed by the mayor and the mayor is not the chief executive and administrative officer of the municipality and the mayor and councillors of this municipality are apparently part-time positions as it appears their salaries around $11K.

If the Board of Education was independently elected - this conflict wouldn't happen as the mayor with the potential conflict wouldn't be making appointments. If the mayor was the chief executive/administrative officer  (rather than being what is effectively the chair of the city council) it would be a full time job that would  probably be paid what the township manager earns (which was $160K in 2016).The conflict wouldn't exist because if mayor was a full-time position he would  probably be precluded from holding a second job as VP of the union. I mean, I bet the township manager in Montclair isn't permitted to hold a second job. 

It really takes all three of those to end up in this situation - and I don’t know of any other city school district that has all three. Most of the city school districts I know of still elect their Board of Education, and in the two I know where the mayor appoints the majority/all of the Board members the mayor is the chief executive of the city and it’s a full-time job.

AIUI, the Council-Manager form of city government isn’t that unusual, but the appointed school board IS unusual.

You can convince yourself that an appointed board is OK because it de-politicizes the decision making of the Board, there is no focus on getting re-elected. What is odd is that the Mayoral elections don’t seem to focus at all about what the Mayor will do WRT the school board, despite the fact that it is both an enormous responsibility, and the sole aspect of the Mayoral job that distinguishes it from being a Councilor-at-large.

In my experience, although you might be able to convince yourself that it de-politicizes the decision making, you’d be wrong. It’s still political - it’s just that there are fewer constituents. I have never been able to figure out why schools are the one government function that always seem to be run by supposedly independent boards. I can understand it when the district/board has different boundaries from any municipality. But when the municipality and the board have the same borders , I don’t understand why the schools aren’t run like any other department of the municipality. I’ve never heard of anywhere that elects/appoints a board to run a police/fire department or the parks and recreation department, etc . The heads of those departments are appointed by somebody - either the mayor or the manager, depending on the form of government. I don’t understand why the same isn’t true of school districts, which invariably seem to have some form of a school board, even if it’s as powerless as NYC’s.*

  • The mayor appoints a 8 out of 13 members. The other 5 are appointed by the borough presidents. There are no fixed terms and the members serve at the pleasure of whoever appointed them. So of course the mayoral appointees vote the way he wants - because otherwise they get replaced.

Bumping this not because of the burning interest in the topic, but because sometimes the system works.

Turns out that our mayor is no longer a VP in the teacher’s union, but is now President of the statewide teacher’s union. Despite a lack of legal rodeo, no lawsuits or that sort of thing, the residents seem fairly unhappy that the Union President appoints our Board of Ed., and have voted to make a change.

A petition became a referendum, which passed, and our BoE is now and forevermore going to be an independently elected BoE, like the other 98% of NJ.

I read the original question and my first thought, being completely ignorant of New Jersey law, was that this resembles what is called a non-justiciable political question under federal law. The idea is that there are some decisions that are so tied up in the political choices made by the public and their representatives that the courts shouldn’t step in and solve the problem. Instead, free and fair elections ought to take care of it. In this case, that would mean that voters who didn’t want the Union President to also appoint a controlling number of school board members simply shouldn’t elect that person to do the job. It seems like this matter was resolved when voters indeed made that decision. The system did work. Good on your town.