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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.<br>
<br>
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.<br>
<br>

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.<br>
<br>
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.<br>
<br>
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?<br>
<br>
<b>Arguments for No Ethics Program Jurisdiction</b><br>
In <a href="http://www.cityethics.org/content/centralized-vs-disbursed-ethics-progr…; target="”_blank”">a
2010 blog post</a> 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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
<b>The Reality, Whatever the Law</b><br>
The fact is that, in most cases, a school board <i>can</i> 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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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.<br>
<br>
Often, there are laws that expressly allow school board cooperation.
Here is one from Connecticut:<blockquote>

Sec. 10-239k. <i>Shared service agreements.</i> 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.</blockquote>

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.<br>
<br>
<b>Clarifying Jurisdiction</b><br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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