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Visotcky v. City Council

Decided: February 3, 1971.

RICHARD VISOTCKY, CARMINE J. PERRAPATO, JOSEPH KOBYLARZ, BENJAMIN ATTARDI, JOHN J. PRELICH, JR., PLAINTIFFS AND ALEXANDER CHABORA, PLAINTIFF-RESPONDENT,
v.
CITY COUNCIL OF THE CITY OF GARFIELD, BOARD OF EDUCATION OF THE CITY OF GARFIELD, WENDY MIKO, GERALD DE MURO, EDWARD WALENCIAK, MICHAEL FLOWA, TRIFONIO RIZZO AND RALPH W. CHANDLESS, DEFENDANTS AND ANTHONY BARCKETT, DEFENDANT-APPELLANT



Kilkenny, Halpern and Lane. The opinion of the court was delivered by Kilkenny, P.J.A.D.

Kilkenny

Defendant Anthony Barckett appeals from those parts of the final judgment entered in the Law Division on March 24, 1970 whereby it was adjudged that the appointment of plaintiff Alexander Chabora as a member of the board of education of the City of Garfield was valid and that the appointment of defendant Anthony Barckett as a member of said board was invalid.

The facts are not in dispute. On December 16, 1969 Theodore Vagell resigned as a member of the board of education. On December 22, 1969 the then Mayor Gotthold Rose, whose term of office as mayor was expiring at noon on January 1, 1970, appointed defendant Barckett to fill the vacancy caused by the resignation of Vagell. Garfield is a "Type I" school district, pursuant to N.J.S.A. 18A:9-1 and 2(b), having previously been governed by Title 18, chapter 6, of the Revised Statutes. As such, the mayor has the sole power of appointment of members of the local board of education. Barckett subscribed to an oath of office on December 31, 1969 before a notary public, which was presumably filed on December 31, 1969, with the City

Clerk according to an unsigned verification in the record before us.

On January 5, 1970 the new mayor, Richard Visotcky, who had assumed office at noon on January 1, 1970, appointed plaintiff Chabora to the board of education to fill the vacancy caused by the resignation of Vagell. Chabora took his oath of office the same day.

Plaintiffs challenged the validity of Barckett's appointment by the outgoing mayor to the board of education, claiming that it was "illegal" in that (1) it was contrary to the provisions of N.J.S.A. 18A:12-2, because Barckett, at the time of his appointment as a member of the board, was a teacher in the Garfield school system and under contract with the board to teach in the local schools, and (2) the resignation of Vagell had never been accepted or otherwise acted upon by the board of education or other proper authorities at the time of Barckett's appointment.

Barckett was employed as a teacher by the board of education at the time of his appointment and was under a written contract with the board to teach in the local system for the then current year. He continued to teach in Garfield until June 30, 1970, and was paid and accepted his salary for his services under the teaching contract. His attorney wrote a letter dated February 4, 1970 to Judge Trautwein, who heard the matter in the Law Division, expressing his client's willingness to "give up the teaching job," but this was conditioned upon its being "determined that he is disqualified unless he gives up the teaching job." He continued to teach in Garfield, as noted above.

Judge Trautwein decided that Barckett's appointment to the board of education, by whom he was employed under contract, was invalid from its inception, "nunc pro tunc." He found that there was "such a patent inconsistency and danger built into a person serving as a teacher in a school system in a town and also serving on a Board of Education, who is his employer, and I believe this statute [ N.J.S.A. 18A:12-2] was violated in this instance."

Common sense dictates the conclusion that being a school teacher and a member of a board of education in the same school district is patently incompatible. "The members of the board of education of a municipality are public officers holding positions of public trust. They stand in a fiduciary relationship to the people whom they have been appointed or elected to serve." Cullum v. Board of Education, North Bergen Tp. , 27 N.J. Super. 243, 248 (App. Div. 1953). A teacher's position is also one of public service, but the teacher is an employee whereas the board of education is the employer. There are many potential conflicts of interest between the two. "It is no answer to say that the conflict in duties outlined above may never in fact arise. It is enough that it may * * *." Jones v. MacDonald , 33 N.J. 132, 138 (1960). The widespread differences throughout our State in matters of salary negotiations, with resultant "job actions" by teachers and injunctions obtained by boards of education against teacher activities, remind us vividly of the conflicts between teachers and boards of education. A teacher's self-interest can readily run counter to a board member's loyalty to the public. We entertain no doubt that an individual may not properly act contemporaneously as a teacher and a member of the board of education in the same school district. The positions are incompatible and represent intolerable potential conflicts of interest.

N.J.S.A. 18A:12, Article I, entitled "Qualifications," lends support to the conclusion that one may not qualify as a member of a board of education, if he is at the same time bound by a contract with the board. Section 1 of this Article sets forth the qualifications of citizenship: two years at least of residence preceding appointment or election, and ability to read and write. Section 2 of the same statutory Article dealing with "Qualifications" provides:

No member of any board of education shall be interested directly or indirectly in any contract with or ...


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