For almost two decades, a School Director’s participation in negotiations with a bargaining unit which includes the Director’s spouse has not been permitted by the 1990 Ethics Commission Van Rensler Opinion. In Van Rensler, the Commission held that Directors could vote on the final agreement, but the Ethics Act prevented the participation of Directors in negotiations if the Director’s spouse was a member of the bargaining unit. The Commission noted that the negotiation process would then be free of that Director’s influence and the potential for the use of confidential information would be minimized, if not eliminated. The affected School Director was permitted to vote on the resulting contract based upon the conflict of interest class/subclass exception which requires that the spouse must be a member of a class consisting of the general public or a true subclass consisting of more than one member and the spouse must be affected to the same degree as the other members of the class/subclass. However, the December 2008 Davison/Fox opinions of the Commission, have overruled Van Rensler. The Commission now has determined that there is no basis in the Ethics Act for distinguishing between voting and participating in negotiations when the class/subclass exclusion is applicable. In other words, a Director can participate in negotiations and vote on the final contracts. However, the Commission stressed caution. Although the class/subclass exception might initially apply to permit a Director to participate in negotiations, the Director must remain vigilant and recognize developments during the negotiation process which would render the class/subclass exception no longer applicable. At that point, the Director would be required to abstain from further participation in the negotiations. Therefore, while the current Commission rulings permit a Director to both participate in negotiations and vote on contracts, even though the Director’s spouse is a member of the Union, such participation may still draw the Director into an impermissible conflict of interest.
Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.