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Board of Education of the City of Sea Isle City v. Kennedy

July 21, 2008


On certification to the Superior Court, Appellate Division, whose opinion is reported at 393 N.J. Super. 93 (2007).


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Court considers whether a school board member was properly removed from office because his petitions to the school board on behalf of his son constituted an impermissible interest in a claim against the board.

Petitioner William J. Kennedy was elected to his first three-year term on the Sea Isle City Board of Education (Board) in 2001. His term ended when he resigned on June 29, 2003. Immediately thereafter, he and his wife filed a request with the New Jersey Department of Education for a hearing concerning the special education program for their son, M.K., who had been diagnosed with an autism spectrum disorder. The Kennedys' petition for a due process hearing was filed against the Board, which was responsible for providing special education services to M.K. The petition asserted that M.K.'s individualized educational program (IEP) failed to satisfy his needs, in violation of the Individuals with Disabilities Education Act. The litigation ended when the parties entered into a settlement agreement in April 2004. Also in April 2004, Kennedy was again elected to the Board for a three-year term.

In March 2005, while Kennedy was serving as the Board's president, he and his wife, individually and on behalf of their son, filed two virtually-identical applications requesting a due process hearing and an emergent hearing with the State Director of the Office of Special Education Programs. The Kennedys claimed that the Board had materially breached the terms of the 2004 settlement agreement. In addition to seeking enforcement of the settlement agreement and specific services for their son, the Kennedys sought payment for services that Mrs. Kennedy had provided, along with attorneys' fees, experts' fees, costs, and disbursements. In his petition, Kennedy advised that he would recuse himself from all matters before the Board that related to the school district and his son. The Board immediately sought from the Commissioner of Education a declaratory ruling that the applications created a conflict of interest with the Board that was incompatible with Kennedy's continued Board membership.

The declaratory judgment petition was transferred to the Office of Administrative Law. An Administrative Law Judge (ALJ) issued a decision in May 2005, finding that Kennedy's conduct was permissible under the School Ethics Act (SEA), N.J.S.A. 18A:12-21 to -34. Specifically, the ALJ found that Kennedy's due process request was designed to protect the educational rights of his child and was permitted by N.J.S.A. 18A:12-24(j), which allows a school official to represent himself in negotiations or proceedings concerning his own interests. The Commissioner rejected the ALJ's recommendation and determined that Kennedy's actions created a disqualifying conflict of interest under N.J.S.A. 18A:12-2, which prohibits board of education members from having a direct or indirect interest in any claim against their board. The Commissioner's order that Kennedy be removed from office was affirmed by the State Board of Education.

The Appellate Division affirmed. 393 N.J. Super. 93 (2007). The court specifically rejected Kennedy's argument that the adoption of N.J.S.A. 18A:12-24(j) impliedly repealed N.J.S.A. 18A:12-2.

HELD: Not all controversies and disputes that may erupt between a local school district and a parent who is also a sitting board of education member concerning the special education program for the member's own child should require the member's removal from office. In this matter, however, removal was necessary and appropriate because of the concrete pecuniary aspects to the dispute between the parties.

1. The goal when construing a statute is to discern and fulfill the Legislature's intent. The Court begins its analysis by examining the plain language of the provision relied on by the Commissioner. N.J.S.A. 18A:12-2 discusses qualifications for taking office and states that "[n]o member of any board of education shall be interested directly or indirectly in any contract with or claim against the board . . . ." The Legislature made clear in this and other provisions that no one can commence service as a local board of education member without first swearing that he or she meets all qualifications for office. A qualification to assume office does not necessarily equate to a required forfeiture of office, however, and N.J.S.A. 18A:12-2 is silent about removal from office. In other provisions in Title 18A that are not applicable here, the Legislature expressly and unequivocally required removal from office for specified reasons, demonstrating that it knew how to impose immediate removal. It is textually uncertain, therefore, whether the Legislature meant for the removal of a seated school board member to be similarly absolute, and immediately required, whenever the member has an interest in any kind of claim that may arise during the course of the member's term. (Pp. 9-14).

2. In prior decisions involving claims by board members, the Commissioner of Education discussed the relevance of assessing whether the member was pursuing a claim in the public interest rather than for personal enrichment or whether the claim giving rise to the conflict of interest promised substantial and material benefit to the claimant. In one decision, the Commissioner specifically rejected the argument that N.J.S.A. 18A:12-2 required automatic disqualification for any claim by a member against a board. These decisions by the Commissioner demonstrate a willingness to engage in a careful examination of a board member's asserted conflicting interest and, further, to find that not all claims against a board in which a board member has an interest constitute a substantial conflict requiring removal from office as the sole remedy. (Pp. 14-16).

3. The SEA was enacted after many of the Commissioner's decisions were issued. In N.J.S.A. 18A:12-24(j), the SEA recognized a limited need to except board members from an absolute prohibition against pursuing their family members' interests in negotiations and proceedings involving the board. Read broadly, the later-enacted SEA could contradict N.J.S.A. 18A:12-2's interest in prohibiting substantial conflicting claims that pit a board member's interest in a claim against the interests of the board. The Court finds, however, that the two statutes can be harmonized. The Legislature's authorization of a board member's ability to pursue resolution of some personal issues, interests, or disagreements with a school district through negotiations and even proceedings is not repugnant to the earlier recognition by the Commissioner that not all claims against a board will require disqualification and removal from office under N.J.S.A. 18A:12-2. The Court views the SEA's exemption as a legislative expansion of that previously recognized, limited case-law exception to the rule against inconsistent claims. Therefore, a board member should not be removed from office merely for advancing a claim in a proceeding against a school district involving that individual or an immediate family member's interests. Instead, the line between acceptable and prohibited activities by a board member may be resolved through the prism of a fact-specific inquiry. That inquiry should assess whether there are substantial and deeply antagonistic interests that would call into question a board member's ability to perform public duties and the public's confidence in the member's ability to perform his or her office, notwithstanding the advancement of a personal interest through negotiations or a proceeding. (Pp.16-20).

4. Because this matter involves a board member who has a handicapped child, the Court also reviews the federal and state laws governing the delivery of special education services. Under federal law, a handicapped child must be provided with a free appropriate public education. Certain procedural safeguards are mandated for the benefit of handicapped children and their parents, available when a dispute arises between the parents of a handicapped child and a school board. The key dispute-resolution vehicles are mediation or a due process hearing. Furthermore, this Court has held that both the board and the parents have a common interest in the resolution of an appropriate education for the child. The joint interest of the board and the parents in resolving these disputes makes them particularly suited to early and efficient resolution. Indeed, it is the policy of this state to encourage less-adversarial means to resolve special education disagreements by encouraging mediation. (Pp. 20-24).

5. Because not all claims result in a substantial conflict, board members who have handicapped children should not have to fear the loss of their elected office as a condition of questioning, or if necessary pursuing through the initiation of proceedings, the appropriateness of the child's education. Thus, for example, a disagreement between a parent and a school board requiring multiple meetings with a child study team is not the type of substantial conflict that N.J.S.A. 18A:12-2 is intended to prevent. The Court will not presume that every due process request to resolve specific issues regarding a child's classification or IEP should result in the automatic disqualification of a board member either. Instead, the Commissioner should review the claim to determine whether it portends the likelihood of protracted, and intractable, litigation between the parties. Enforcement issues in respect of existing IEPs should be similarly examined. Particularly because mediation may provide a possible solution to the dispute, case-specific examination should be undertaken. The Court cannot rule out the possibility that a due process hearing request might present the type of controversy that could be quickly and easily resolved between the parties. Although the Court requires that the Commissioner examine the nature of the dispute and establish a more careful and fact-specific explanation of when a conflict over a child's educational program becomes so substantial that removal from office is required, it finds that when a due process claim includes a request for specific, significant monetary relief, a line has been crossed and a substantial conflict can be found to exist. (P. 24).

6. Here, the due process petition included a demand for payment to Kennedy's wife for services that she had provided to her son. Because the claim for substantial monetary relief cannot be reconciled with Kennedy's continued service on the Board, removal from office was appropriate. (Pp. 24-25).

The judgment of the Appellate Division is AFFIRMED, as MODIFIED.


The opinion of the court was delivered by: Justice LaVECCHIA

Argued May 5, 2008

This appeal involves the interplay between the School Ethics Act (SEA), N.J.S.A. 18A:12-21 to -34, and N.J.S.A. 18A:12-2.

N.J.S.A. 18A:12-2 prohibits board of education members from having a direct or indirect interest in any claim against their board. The SEA operates in complementary fashion. It also addresses conflicts of interest for school board members and prohibits, among other things, certain representational activities that would put a board member in a position inconsistent with that of his or her board. See N.J.S.A. 18A:12-24. However, the SEA contains an exemption that allows "any school official, or members of his immediate family, [to] represent[] himself, or themselves, in negotiations or proceedings concerning his, or their, own interests." See N.J.S.A. 18A:12-24(j).

In this matter, a board member had filed a special education due process request with the State Director of Special Education Programs, see N.J.A.C. 6A:14-2.7(c), on behalf of his son. Relying on N.J.S.A. 18A:12-2's prohibition against a member having an interest in an inconsistent claim against the board, the Commissioner of Education ordered the board member's removal from office. The State Board of Education affirmed the Commissioner's determination, as did the Appellate Division. Bd. of Educ. of Sea Isle City v. Kennedy, 393 N.J. Super. 93, 106 (2007). We granted certification to consider whether a statutory conflict ...

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