Board ethics: in states and communities, the ongoing struggle to codify appropriate behavior of school board members.

In Tennessee, a school board member walks into her son's school and starts asking detailed questions about school operations. Is she a concerned parent or an overly intrusive board member?

In Missouri, a board member openly criticizes a policy his board colleagues have passed but that he voted against. Is he dutifully representing a constituency that opposed the policy or creating undue strife within the board and the district?

In New Jersey, a board member's wife proposes a charter school that would compete in attracting students within the district. Should her husband acknowledge a conflict of interest?

These questions are among the thornier ethical issues that can pop up at any time in a school district. For school boards that are unprepared, such issues can be disruptive and divisive, taking energy away from more pressing issues of school governance and operations.

"You don't want something to break, especially in ethics, and then find out your ethics policy isn't good enough," says Tom Hiltz, a member of the school board in Carroll County, Md., west of Baltimore, who pushed for a revised ethics policy last year. "If you have a problem with ethics because of your ethics policy, it's too late to fix it."

Wary Superintendents

Concerns over the rules of conduct for school board members have been on the rise in many communities that have either revised old ethics policies or created new ones. And some districts have found that the discussion of ethics codes can itself become divisive for boards if not handled properly.

The Pennsylvania School Boards Association heard worries about ethical decision making last year when it surveyed its members while developing a new strategic plan. Although the survey did not ask specifically about ethics, the issue emerged as a strong concern among board members--right alongside public funding, special education expenses and the No Child Left Behind Act.

"I would say the staff was surprised that it was that strong an issue among our leadership," says Sharon Fissel, director of policy services for the Pennsylvania association.

Like many other states, Pennsylvania has clear laws governing conflicts of interest and financial disclosure for elected officials, Fissel says. But in the survey and subsequent focus groups, school board members said they wanted more guidance on hazier issues involving proper conduct, civility and communication within the board and between board members and the public.

"I think they were looking at more positive leadership," Fissel says. "I think they're thinking about taking board leadership to a higher plane."

The PSBA is responding by reviewing its recommended code of ethics, which was adopted in the mid-1970s. It hopes to have a revised code out by January 2005 that local school boards can use.

Most school board codes of conduct include strong reminders of the limitations of a board member's power--that members have authority only when acting along with the rest of the board and that the board is responsible for district policy, not day-to-day operations.

School administrators have a major stake in such discussions because proper board behavior is critical to a district's success or failure, not to mention a superintendent's quality of life. Texas superintendents surveyed for a 2002 doctoral dissertation in educational administration by Judy Ann Thompson-Bandy at Baylor University responded that the most frequent ethical lapses on their school boards dealt with delegating proper authority to the superintendent--in other words, not allowing the superintendent to perform his or her job without undue meddling.

For obvious reasons, superintendents often are wary about getting involved in board discussions about ethics, where they could be perceived as meddling in board business or even steering a policy discussion in ways that could be beneficial to them.

Lee Kindberg, policy committee chair of the Charlotte-Mecklenburg, N.C., school board, which is researching ethics policies, says superintendents can be helpful in the discussion because they often have served in other districts that may have had experience with codes of ethics. The superintendent also serves as a role model.

But school executives still must tread lightly. If they are perceived as either interfering in board policies or being critical of the behavior of certain board members, they could worsen a rift on the board or even become a target themselves.

"At times they can suggest ideas that can be valuable, but if they do get involved in it there's a risk," Kindberg says.

Mandatory Training

Some states and state associations have aggressively marketed their codes to local boards. The Tennessee School Boards Association adopted an ethics policy in 1997. A few years later it created an ethics advisory council to address questions from local boards.

While the code is recommended and not mandatory, the association is not shy about its desire to see all 136 school boards in the state adopt it. The group gives out Board of Distinction awards each year to exemplary school boards. Only those that have adopted the code--meaning every board member has signed it--are eligible.

In addition, the association produced a video on ethical behavior for school boards that is being used by 12 Southern states. Tennessee is one of 18 states with mandatory school board training, and the video is part of that training, says Tammy Grissom, the association's executive director.

The videotape contains a series of 12 three- to five-minute vignettes about school board ethical dilemmas. They all deal with a school board member named Andy who runs afoul of his board in one way or another. In one vignette, called "Sour Grapes," Andy runs into a friend at the grocery store and grumpily bad-mouths his fellow board members for voting to build a middle school in what he believes is a bad location. The moral of the vignette is that once a vote is taken, members should accept it rather than succumbing to bitterness and sowing discord throughout the community.

"The videos are funny, but they have a lesson, and [board members] learn," Grissom says.

Many times, the association can answer an ethics question without formally referring it to the advisory council. Sometimes questions involve a conflict of interest. Others concern the limits of a board member's authority, like a member who took it upon himself to question the morals of a female teacher who had a lot of cars parked at her house late at night.

"It's not your job (as a board member) to follow the school bus each morning and see if they're speeding and taking notes," Grissom says. "It's school board members getting into what they shouldn't be getting into."

Board members in Tennessee must take a seven-hour training session each year, and new board members have two days of mandated orientation on top of that. Still, individual boards don't have to adopt the suggested code, and the association has no enforcement mechanism.

"It's a way for school board members to police themselves instead of someone telling them they're wrong," Grissom adds. "Whether they take our advice is another question."

A Statewide Code

Not so in New Jersey, where the code of conduct created by the state school boards association has been incorporated into state law. The association created a code of conduct in the 1970s and suggested school boards adopt it. Some did and some didn't. In 2001, the state legislature folded the code into its existing School Ethics Law, and now school boards are required to follow it. (See related story, page 22.)

The code contains such self-limiting statements for board members as:

* "I will confine my board action to policymaking, planning and appraisal, and I will help to frame policy and plans only after the board has consulted those who will be affected by them;" and

* "I will carry out my responsibility not to administer the schools, but, together with my fellow board members, to see that they are well-run."

The state's School Ethics Commission meets monthly and can mete out sanctions ranging from a private letter to the accused board member to public reprimand, suspension and even removal. The sanctions must be approved by the state education commissioner.

Edwina Lee, executive director of the New Jersey School Boards Association, says she believes the ethics law is the most far-reaching in the nation, though some school leaders view the ethics commission as a toothless tiger (see related story, page 24). Lee says the law's creation followed a natural evolution that began more than 20 years ago.

During that period, school taxes were rising year after year and taxpayers were becoming increasingly adamant that the money be spent properly. Reports of wasteful spending in some districts further raised their ire, especially in Jersey City, where Lee says wasteful spending and low student achievement led to the state's first takeover of an entire school district.

With their attention focused on the issue, state legislators passed the School Ethics Law and created the School Ethics Commission in 1991. This law dealt mostly with conflicts of interest, financial disclosure and other fairly clear ethical issues. But school boards soon found that there were other, softer issues--such as board decorum, the limits of board members' authority and the use of proper channels of communication--that weren't covered.

"There became a pattern that oftentimes these were not black-and-white, 'you-did-something-wrong' legal issues," says Lee, a former school board member and education lobbyist. "These kinds of issues had been around for numerous years and the association's membership raised the question, 'What can we do?'"

Folding the code of conduct into the ethics law has resolved some of those issues. And boards must pay attention: Members are required to learn about the code, and failure to be conversant with it is no defense. Lack of participation in the ethics training is itself a violation of the state code.

All that is not to say that New Jersey has solved all the ethical dilemmas that can arise for school boards. Lee acknowledges that the commission mostly faces the kinds of ethical questions spelled out in the School Ethics Law independent of the code of conduct.

Such issues include the case of the board member whose wife proposed a charter school within the district. The commission's opinion: The board member did not have a conflict that violated the law, but he should abstain from any discussion or vote on whether to give the go-ahead to the school.

A Board Initiative

Absent such a forceful push from the state, school boards must decide for themselves what type of ethics policy, if any, they may want to adopt. Some start from scratch. Others find policies adopted years ago don't stand up under scrutiny and must be revised. Hiltz, the board member in Carroll County, Md., says when he looked over his district's policy he found loopholes large enough for a school bus to drive through.

Under the policy, a board member hypothetically could accept a free trip to Las Vegas, complete with expensive meals and entertainment, from a company that does business with the school district. All that board member would have to do is appear on a panel to speak briefly on an education-related issue.

Hiltz discovered a lot of other less dramatic loopholes and some areas that weren't covered at all. Because the policy, like many others, was based on a legislative model, it did not cover certain behavioral issues specific to school board members, such as the limits of a board member's powers and the appropriate ways to communicate with the public.

Hiltz decided the policy badly needed revision. He was surprised at the resounding lack of enthusiasm that greeted the idea.

"I was a lone ranger for a while," he says. "I got pushback from many folks, including some board members."

Reactions among his board colleagues ranged from apathy to a fear that a revised, higher-profile ethics policy could be used for political purposes, with board members on opposite sides of a policy debate lodging ethics complaints against one another.

Eventually, Hiltz and another board member began revising the policy, tightening language and making clear it applied to all district employees, not just the five-member board. He even tried to get the policy to apply to the board attorney, but upon advice from the National School Boards Association rejected that idea because lawyers already are sworn to their own ethical code.

A significant change involved developing a new financial disclosure form. The previous form, described by Hiltz as "pretty close to meaningless," simply asked board members (and selected employees) if they had any interest in companies that do business with the school system. Now it requires them to disclose all companies in which they have a stake of $2,500 or more.

As important as the specific changes, Hiltz says, is the heightened attention the revised policy received throughout the district following its adoption in 2003. Board members and staff now are more likely to reflect on the consequences of their words and behavior and to act on perceived improprieties they see, he adds.

"We're not making it just a policy that's in the book," he says. "We've made it clear that ethics is important and should guide the actions of the staff."

Maverick Views

Most state school board associations have recommended codes of conduct. But as some local boards have found, broaching discussions about the civil behavior of school board members can turn ugly quickly--especially when they are prompted by the perceived bad conduct of a member.

The Avonworth school board in suburban Pittsburgh adopted a code of ethics in 2002 after board members became upset that one maverick member had divulged matters discussed in a private board session. Last year, that member and two others refused to sign the code because they saw it as a political weapon being wielded by the board majority.

The code closely follows a template created by the Pennsylvania School Boards Association. It stresses that board members have no legal authority as individuals and that they can wield power only as a board. It warns against trying to micromanage the district or interfere with the superintendent or staff. And it urges members to act "in a spirit of harmony and cooperation" with other board members and to uphold the final decisions of the board even if they disagree with them.

One dissenter called it "a loyalty code." Another called it "an empty gesture" because it had failed to quell infighting among members the previous year.

Board member Lynn McGrath says the board is getting along better now, and the ethics debate is on the back burner. But she warns other school boards to consider carefully the timing and motives for introducing or revising such codes of conduct. "If it's not done for the right reasons it can be done in a harmful way. You can't bring something in if there's no trust on the board because it can be abused," she says.

A similar dispute arose last year in the Francis Howell School District near St. Louis. The board approved a code of ethics that included a provision that all members must support board decisions after they are approved by the board.

That didn't sit well with Mark Lafata, a maverick board member who frequently opposes the board majority. He says he voted for and signed the code under pressure and was not allowed to remove his signature without another board vote, which he would have lost.

"They basically said either sign this or we're going to tell the public you're not being ethical," he says.

Lafata argued that he represents a constituency that needs him to speak out on issues. If he doesn't agree with the outcome of a board vote, he should have the right to continue to speak out, he contends. "They were trying to seek a way to stop any negative publicity. I think it's a control issue. There are certain people in this community who want to be represented.... It's almost like a violation of my freedom of speech rights."

Proponents of such provisions argue that board members can debate as much as they want before a vote, but once the vote is taken and a policy is adopted they should form a united front behind it.

Considering Options

The DeKalb County, Ga., school board ran across a different problem with its code of ethics last year. The code required the board to reject any contract bids for district work from firms whose employees contributed to the political campaigns of school board members. The code would have meant the board could not extend its contract with the partnership that was managing ongoing construction and renovation projects. Four of the board's members had received contributions from people or companies that did work with the district, the Atlanta Constitution-Journal reported.

The board waived that portion of its ethics policy and vowed to review and rewrite the policy as needed.

In North Carolina, the Charlotte-Mecklenburg school board started discussing its current ethics policy last year after a board member talked to the press about discussions the board had in private session. Although the district has an ethics policy, it does not cover proper conduct for members of the board, says Kindberg, who chairs the board's policy committee.

Kindberg says the board has been collecting ethics policies from other school boards, both inside and outside North Carolina. They range from highly prescriptive to very general and from first-person pledges to third-person descriptions of proper behavior. Some have teeth in the form of sanctions for board members who violate them while others are strictly advisory.

Kindberg's board must choose from all the options. That's both a major challenge and a healthy exercise for members who are often tied up with more immediate debates and decisions, she says.

"At least as important as having a policy is the process you go through to get to that policy," she said. "I think it's very instructive to see what other systems are doing."

But after a big turnover of the board last November and the constant press of other issues, the board put that discussion aside temporarily. But Kindberg says she is determined to keep the issue alive. "If you don't put it on the work plan, it'll never get done."

RELATED ARTICLE: New Jersey cleans up its ethics act.

Can a school board member ethically vote on a union contract if he has a relative in the bargaining unit?

The New Jersey School Ethics Commission has wrestled with that problem several times, and the answer is not as simple as one might think.

For an immediate family member such as a spouse, son or daughter, the standard is clear: Board members who vote in such situations are in ethical breach because their actions could bestow direct financial benefits on their loved ones.

But what about less immediate relatives? The answer depends on the circumstance but the ethics commission's rulings suggest that if the relative is a son-in-taw or daughter-in-law such a vote would be unethical. If it's a brother-in-law or sister-in-law, it probably wouldn't be a broach of ethics.

In a 1996 case, the board ruled that in the case of a son-in-law. "the public could reasonably perceive that the board member's own indirect financial or personal involvement in the agreement will impair his objectivity or independence of judgment." In 1998 it ruled that a sister-in-law "does not provoke the same concern" because it doesn't involve the board member's "great interest in his child's financial well-being."

Delicate Rulings

The New Jersey commission has been making such delicate judgments for more than a decade. The rulings are based not only on the state's 1992 School Ethics Law--which covers school administrators as well as board members--but on a school board code of conduct folded into the law three years ago.

The nine-member commission remains busy, Halfway through this year. the commission had received 41 ethics complaints, according to the commission's executive director, Lisa James-Beavers. That's compared to 48 complaints to all of 2003 and 51 in 2002.

Twenty-three additional requests were made for advisory opinions during the first half of this year, compared to 32 in 2003 and 24 in 2002.

Most of the ethics complaints, perhaps as many 80 percent, are dismissed without sanction by the commission, which meets monthly, according to Mike Yaple, a spokesman for the New Jersey School Boards Association, which created the code of conduct incorporated into the ethics law.

When the ethics commission rules on a complaint, the ruling is final, but the recommended sanction must be approved by the state education commissioner. The board can recommend a range of sanctions, including a private letter of censure, a public reprimand to be read aloud at a meeting of the school board in question, suspension and even removal from office. The commissioner generally backs up the recommendations.

For instance, the board censured two school board members last December for taking pictures of messy school kitchens and then going on television to complain about the food service contractor without alerting district officials of the problem. The ethics complaint argued that they did so at the behest of the teachers' union, which opposed the contractor and had endorsed the candidacies of the board members.

The ethics commission ruled that the board members violated the code of ethics by surrendering their independent judgment to a special interest group--the union. It also found one of the board members violated the code by going straight to TV rather than first trying to effect an administrative solution.

Decisive Sanctions

In a more serious case in April, the commission reprimanded a school board member after a district employee complained the board member called her at home, threatened and yelled at her and demanded she return to work at 8:45 p.m. on a Friday to retrieve some reports he had asked for earlier in the day.

The commission found the board member had violated two sections of the code of ethics--first by taking a private action that could compromise the board, and second by not supporting and protecting school personnel in the proper performance of their duties.

Last November, the commission recommended removal of a charter school board member, and the education commissioner did so. The ethics commission found that the school board member violated two provisions of the ethics code by acting as a "one-member board."

According to the commission decision, the board member took it upon himself to fire the school's chief academic officer and sought full board approval only after the fact. He also hired a former board member as technology coordinator without any board action, The former board member had resigned from the board specifically to receive compensation for work he had previously been doing for free, the commission found.

All of these ethics commission decisions are adding to a body of work increasingly recognized by educators across the state, says James-Beavers, a lawyer who has been the commission's executive director since 1995. She said she believes the cumulative weight of that work is changing school board behavior.

"People are more conscious of their actions and their votes," she says, "and they're more inclined to read what's before them."--Paul Riede

RELATED ARTICLE: Building an ethical board.

BY ROBERT H. HOLSTER

To build an ethical school community, you first need to build an ethical school board.

As a superintendent, I must instill and reinforce an undying commitment in every board member to act assiduously on ethical principles. My 12 years as a school leader have taught me to keep my guard up, to expect the unexpected and to address issues expeditiously--with some caution.

Too often, those who say they are stakeholders in governing public education come armed with personal agendas, rather than an ethical commitment to work for the benefit of all children. When it comes to the actions of board members--the policymakers for our school community--there is way too much gray and too little sunshine.

School board members must be at the forefront to respect the need for ethical boundaries. They must take ethical decisions and behavior seriously, removing any personal issues from their agendas in order to address student needs. After all, they set a public example for all students to learn to make ethical choices, to think critically and to believe they can make a difference through their words and actions.

Loose Cannons 

One major challenge in building an ethical school community is that school personnel tend to stay forever, while most board members come and go. However, some board members are re-elected repeatedly, enabling them to become loose cannons, Their political agendas grow over time and ultimately power takes precedence over any genuine commitment to put student matters first. Ethical considerations are lost. When an elected board member commits egregious actions, public trust disappears, and a superintendent's hands are tied until the voters decide whether to remove the trustee from office.

The formation of an ethics advisory committee to reinforce ethical standards in decision making may be one way for a school system to prevent inappropriate behavior. Members of this committee could be drawn from the community and school employee groups. Although our board has subcommittees to address ethical issues, no framework or board policy provides a process for dealing with a potential ethics violation. Self-policing does not work. Although New Jersey has a school ethics commission, too often these officials fall asleep at the switch, and unethical issues are overlooked or barely examined.

Board members often conveniently forget their primary role is to establish and enforce policies benefiting students, not themselves. By raising questions to the board member about his or her behavior early on, a superintendent can prevent a board member from starting down a path to unethical acts.

Acting ethically must mean more than separating right from wrong. During every school board election, candidates give forceful presentations of right and wrong, yet the day after they're sworn in, some become members of the "good ol' boys club." Board members cannot assume the role of employment counselors. They cannot be everyone's friend or promise jobs or contractual work. If they can't separate personal issues from their board responsibilities, they surely shouldn't be serving our children or our community.

Recently a member of the Passaic school board was charged with a felony and jailed for an alleged theft stemming from a job-related payroll scheme--the latest example of corruption superseding ethical commitment.

A Paper Tiger 

In 1992 New Jersey created the School Ethics Act to control nepotism, a growing problem in many school districts. It is a problem that would not occur if board members didn't have hidden personal agendas concerning hiring certain individuals. When it comes to nepotism, as a superintendent I fear the possibility of requiring a DNA test to find out that we're all related.

To control nepotism, every school district is required to adopt a policy on the subject. In addition, the school board's lawyer is required to investigate whether potential employees have relatives working for the district. The mandate also requires us to ensure the district is not violating privacy laws. The law itself does not eliminate nepotism by school boards, but it does help to control it.

Even so, the State Ethics Commission is viewed as a paper tiger with a poor record of enforcement. While board members must fill out forms for the state that list potential conflicts of interest, I doubt this information is digested or applied. The state commission has no objective approach to weeding out serious ethics complaints about board members' behavior and activities.

Until school board members are held accountable for their actions, they will ignore their oath of office. Having ethical standards without enforcement and/or penalties for violations weakens the system. A district superintendent can do little about lax enforcement. Perhaps our major responsibility is to embed and enforce acceptable practices to which we can all agree.

Courage to face the truth and correct wrongdoing is the most important characteristic a superintendent brings to the job. Until our school boards all recognize that the school district exists not for individual gain but for the betterment of all, public education will spin horribly away from its fundamental purpose.

Robert Holsler is superinlendenl of the Passaic Public Schools, 101 Passaic Ave., Passaic, NJ 07055. E-mail: [e-mail]

Paul Riede is an education writer with The Post-Standard in Syracuse, N.Y. E-mail: [e-mail]