Board of Educ. of the City of Sea Isle City, No. A-37-07 (N.J. July 21, 2008)

The New Jersey Supreme Court has upheld the removal of a school board member who was engaged in a dispute with the school district over the special education of his child. The court did not hold that the state’s conflict of interest law would require such removal in any special education dispute between a parent school board member and a district, but where the member’s due process claim included a request for specific monetary relief, the court found removal was justified. William Kennedy, a member of the Sea Isle City Board of Education, had resigned from the board during a previous term after he and his wife filed a due process claim regarding their son’s special education program. That claim was settled shortly after Mr. Kennedy was elected to the board a second time, but the Kennedys later filed a request for a due process hearing, alleging that the board had breached the terms of the settlement. In addition to enforcement of the agreement, they sought compensatory education services and attorneys’ fees, experts’ fees, costs and disbursements. Mr. Kennedy offered to recuse himself, as president of the board, “from all matters relating to the school district and … his son.” However, the board petitioned the New Jersey Commissioner of Education (NJCOE) to remove him, arguing that his claim created a conflict of interest incompatible with his continued service. An NJCOE administrative law judge (ALJ) found Mr. Kennedy's conduct permissible under the School Ethics Act (SEA), which allows a school official to represent himself in negotiations or proceedings concerning his own interests. However, the NJCOE rejected the ALJ's recommendation and determined that Mr. Kennedy's actions created a disqualifying conflict of interest under another state statute prohibiting school board members from having a direct or indirect interest in any claim against their board. The NJCOE’s order that Mr. Kennedy be removed from office was affirmed by the State Board of Education. A state appellate court affirmed, rejecting Mr. Kennedy's argument that the legislature’s adoption of SEA impliedly repealed the earlier conflict of interest provision.

The New Supreme Court affirmed, with different reasoning. The high court noted that the conflict of interest statute is silent about removal from office. Given that the statute spells out in unequivocal terms the grounds for immediate removal under other circumstances, the court found that it was “textually uncertain whether the Legislature meant for 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.” The court pointed out that the NJCOE has, in general, concluded that claims that arise during a board member’s term do not “compel the conclusion that removal is the only course of action.” NJCOE’s past decisions have demonstrated a willingness to engage in a case-by-case, fact sensitive examination of an alleged conflict, the court found, and have found that “not all claims in which a board member has an interest constitute a ‘substantial conflict’ requiring removal from office as the sole remedy.” While many of these administrative decisions predated enactment of the SEA, and while the SEA could, read broadly, contradict the conflict of interest statute, the court emphasized that implied repealers are disfavored and would require the court to find the later-enacted statute to be “utterly inconsistent or repugnant to the earlier.”

Instead, the court found the two statutes capable of “being harmonized.” The court concluded “that a board member should not be removed from office merely because he or she has advanced any claim ‘in a proceeding’ against a school district involving that individual or an immediate family member's interests” but that “[s]ubstantial, disqualifying conflicts of interest should be identified either by type of claim, i.e. specific monetary claims by the member or a family member as in a tort claim, or by type of proceeding.” The line between acceptable and prohibited activities should be resolved through fact-specific inquiry, the court found. Turning to Mr. Kennedy’s claim, the court pointed out that both state law and the federal Individuals with Disabilities Education Act (IDEA) emphasize collaboration in resolving disputes, even in the due process hearing phase. Given the laws’ focus on collaboration, the court stated that the NJCOE “should 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.” However, the court concluded that “when a due process claim includes a request for specific monetary relief, we believe that a line has been crossed and a substantial conflict between a board member and the board can be found to exist.” The court could not “reconcile that claim for substantial monetary relief with a board member's continued service on a local board. For that reason, we have no hesitancy in approving the relief ordered in this matter.”

[Editor’s Note: Although it is not a crucial part of the opinion, the supreme court briefly discusses the burden of proof in IDEA due process hearings, citing the U.S. Supreme Court’s decision in Schaffer v. Weast, 549 U.S. 49 (2005), which held that the burden is on the party requesting relief but left open whether states could override that rule through enactment of their own requirements. New Jersey is among the states that have done so, the New Jersey court noted. This issue was considered in a January 2008 ruling by the U.S. Court of Appeals for the Eighth Circuit (AR, IA, MN, MO, ND, NE, SD), M.M. v. Special Sch. Dist. No. 1, Minneapolis, 512 F.3d 455 (8th Cir. 2008), available below. A petition for review of that decision has been submitted to the U.S. Supreme Court.]
M.M. v. Special Sch. Dist. No. 1, Minneapolis

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