Ethics Program Jurisdiction Over Boards of Education

One government ethics question that does not have a general answer is whether boards of education or school systems are under the jurisdiction of city or county ethics programs. The answer is sometimes, but generally not.

There are several reasons for this. One is that many, probably most school systems have different boundaries than cities and counties. Generally, these are regional, including all or parts of multiple cities, towns, and counties.

The second reason is that many, probably most school systems are creatures or arms of the state rather than creatures of cities and counties. This means that, in some states, even school boards that do have the same boundaries as a city or county are not subject to the city or county's laws or administration.

In practice, this separation takes many different forms. In Maryland, for example, the state requires that school systems have their own ethics laws and commissions. New Jersey, on the other hand, has a state school ethics commission. In Louisiana, the state ethics board, which has jurisdiction over local governments, also has jurisdiction over school boards. It is conceivable that a state would require that school boards be under the jurisdiction of city or county ethics programs, but I don't know of any state that does this.

The third reason for a city or county ethics program not to have jurisdiction over a school board is that, like most boards, departments, and agencies, school boards want to handle their ethics matters themselves. Why should school boards want independent ethics oversight any more than councils do? After all, what is a school board but a legislative body that deals with school policies. And don't elected school board members get much of their campaign funding from those seeking contracts from them?

Arguments for No Ethics Program Jurisdiction
In a 2010 blog post on a debate about this issue in a Connecticut town, I quoted a selectman (local legislator) as saying that "once they start exempting one board, then the argument can apply to many other boards as well." This is true, especially regarding uniformed employees, who often have separate commissions overseeing them, as well as state rules that apply to them, and even internal integrity units. This is also true of independent agencies and authorities, which emphasize their independence from other governmental units. Some local government attorneys argue that they are overseen by a bar disciplinary process,and that this is enough oversight for them. Others argue that they are subject to professional association ethics rules, labor union processes, human resources procedures, the control of their supervisors, etc.

In short, there are lots of arguments why various local officials should not be subject to local ethics programs. But none of the reasons are good. They are no more good with respect to school boards.

The reason is that none of these rules or bodies or processes deal with government ethics matters. The problem is that most officials don't understand this, or act as if they don't.

The Reality, Whatever the Law
The fact is that, in most cases, a school board can allow an independent ethics program to have jurisdiction over it and its employees, at least to the extent that this can be reflected in union contracts. But union issues are secondary. What is most important is that school board members and administrators allow independent ethics oversight over themselves. The great majority of teachers' ethics issues can be dealt with by administrators.

When there is an effective state ethics commission, there is no need for further oversight. When a school board has a truly independent ethics program, the principal question is cost and effectiveness. Would the program be more effective (be able to afford one or more experienced professionals to manage it) and less costly (due to cost-sharing) if the program merged with the city or county's ethics program or with one or more nearby school board or government ethics programs? In most cases, it would be advantageous to everyone.

But most school boards do not have a truly independent ethics program. Merging with one or more other ethics programs presents the perfect opportunity for all concerned to create a truly independent program, because no one will want other local legislators, or school boards for that matter, to have any authority over their handling of conflict situations.

In other words, the jurisdictional "problem" that school boards present is best seen as an opportunity for local governments to have an effective, independent ethics program through cooperation. In most places, no other agency or authority has the resources to make the difference, to be able to fund at least one part-time ethics officer to provide training, independent, professional ethics advice, helping with and checking of financial disclosure forms, and enforcement of ethics laws in a way that the public will find independent and fair.

Often, there are laws that expressly allow school board cooperation. Here is one from Connecticut:

Sec. 10-239k. Shared service agreements. Any two or more boards of education may, in writing, agree to establish shared service agreements between such boards of education or between such boards of education and the municipalities in which such boards of education are located.

Too often, the only talk is about laws and a different sort of independence, the school board's rather than the ethics program's. Even though the state provides no ethics training, advice, disclosure, or enforcement, a school board will argue that it is a creature of the state, and that is that. But this is really a way of saying that the school board does not want an ethics program. Such a school board should stop talking about possible restrictions the state might impose on it, and start talking about what is best for the school system and the community. After all, why would the state block a school board from creating or joining a government ethics program? If there is a law that appears to do so, it was most likely not intended to, and the state education department or board will likely give its permission.

Clarifying Jurisdiction
Whatever the legal structures of a particular state, city, or county, each ethics code, and the ethics commission on its website, should make it very clear whom the ethics program has jurisdiction over. The ethics code should list every possible department, agency, and authority in two provisions:  one that includes those over which the ethics program has jurisdiction, another that includes those over which it does not have jurisdiction. These two lists should be reproduced on the ethics commission website. It would be very useful, both to officials and employees of excluded agencies and to the public at large, if the online list of those over whom the ethics program does not have jurisdiction was to identify the reason why there is no jurisdiction as well as what office or agency does have jurisdiction, if any, with a link to that office or agency's website.

Robert Wechsler
Director of Research-Retired, City Ethics

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