P.E.R.C. No. 2020-42, Bernards Tp B/E

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BERNARDS TOWNSHIP BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2017-160 BERNARDS TOWNSHIP EDUCATION ASSOCIATION, Charging Party. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission sustains the Director of Unfair Practices refusal to issue a complaint and dismisses the Association’s unfair practice charge. The Association’s charge alleges that the Board violated N.J.S.A. 34:13A-5.4a(5), and, derivatively, a(1) by unilaterally prohibiting all certificated employees from providing counseling services on a fee basis. The Commission concludes that the Board’s unilateral change to its policy was not mandatorily negotiable, as the policy change was based on the Board’s managerial prerogative to determine that counseling services provided for a fee poses a conflict of interest with counsel provided in an official capacity to non-paying students. Thus, the Director properly refused to issue a complaint. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of BERNARDS TOWNSHIP BOARD OF EDUCATION, Respondent, -and- Docket No. CO-2017-160 BERNARDS TOWNSHIP EDUCATION ASSOCIATION, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Adams, Gutierrez & Lattiboudere, LLC, attorneys (John E. Croot, of counsel) ¶

For the Charging Party, Oxfeld Cohen, attorneys ¶

(Sanford Oxfeld, of counsel) ¶

DECISION ¶

Bernards Township Education Association (Association) appeals from the refusal of the Director of Unfair Practices to issue a complaint on an unfair practice charge it filed on January 24, 2017 against the Bernard Township Board of Education (Board). D.U.P. No. 2020-6, 46 NJPER 170 ( § 42 2019). The charge alleges that the Board violated the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-5.4a(5), and, derivatively, a(1)1/ by unilaterally changing Board Policy 3232, entitled “Private/Tutoring/Personal Services” (Policy), to prohibit certificated staff members from providing counseling services on a fee basis. ¶

We summarize the pertinent facts of the dispute as follows. The central issue of the dispute is the Board’s modification of the Policy, which was initially created in 2013. The Policy generally permits teachers to provide tutorial instruction and personal services to students. However, it expressly prohibits teachers from providing such services to students they teach or evaluate “[t]o avoid placing a teacher in a position where he/she may have a conflict of interest . . .” It bans all employees from providing services if they were “instrumental in recommending the need for those services.” ¶

In 2016, the Board amended its Policy to ban certificated staff members from providing counseling services for a fee to students, both in-district and out-of-district. In 2017, After the Association filed its unfair practice charge, the Board claims it decided to revise the policy again as follows: ¶

To avoid placing staff members into possible professional conflicts, as well as possible conflicts of interest, certificated staff members may not provide fee based counseling services to district pupils including but not limited to: college and career planning, individual or family therapy and medical or drug/alcohol counseling. (Emphasis added). ¶

The revised Policy prohibits all certificated staff members from providing outside counseling services for fee to any district students. ¶

In his October 23, 2019 decision, D.U.P. No. 2020-6, 46 NJPER 170 (¶42 2019) , the Director of Unfair Practices, primarily relying on State of N.J. (OER) and CWA, P.E.R.C. No. 93-55, 19 NJPER 60 (¶24028 1992), aff’d in pt. rev’d in pt., 267 N.J. Super. 582 (App. Div. 1993), certif. den., 135 N.J. 468 (1994) declined to issue a complaint, stating: ¶

Under State of N.J. (OER) and CWA, substantive determinations about what types of outside employment constitute conflict of interest are not mandatorily negotiable since negotiations would significantly interfere with the making of government policy. Therefore, the Board was under no obligation to negotiate the revisions it made to its [Policy]. Accordingly, the Commission’s complaint issuance standard has not been met with respect to the Association’s 5.4a(5) and derivative a(1) claims, and I decline to issue a complaint on the allegations of this charge. ¶

In its November 26, 2019 appeal of the Director’s decision, the Association argues that the Board’s unilateral changes to the Policy restricting employees’ outside employment opportunities concerned a mandatorily negotiable term and condition of employment, citing several Commission cases which were distinguished in the Director’s decision. The Association further asserts that the Director’s reliance on State of N.J. (OER) and CWA is misplaced. Moreover, the Association argues that even if the change to the Policy restricting outside employment of guidance counselors due to concerns over conflicts of interests was a non-negotiable managerial prerogative, the application of the Policy to all certificated staff members (e.g. non-guidance counselors) is mandatorily negotiable. ¶

The Commission has authority to issue a complaint where it appears that a charging party's allegations, if true, may constitute an unfair practice within the meaning of the Act. N.J.S.A. 34:13A-5.4(c); N.J.A.C. 19:14-2.1. Where the complaint issuance standard has not been met, the issuance of a complaint may be declined. N.J.A.C. 19:14-2.3; CWA Local 1040, D.U.P. No. 2011-9, 38 NJPER 93 (¶20 2011), aff’d, P.E.R.C. No. 2012-55, 38 NJPER 356 (¶120 2012). After a careful review of the parties’ submissions, we sustain the Director’s decision not to issue a complaint because the Board’s modification of the Policy restricting employees’ outside employment due to concerns over conflicts of interests is not mandatorily negotiable, and thus, the Board had no duty to negotiate the revisions to the Policy. ¶

We agree with the Director that the controlling case in this matter is State of N.J. (OER) and CWA. That case involved the State prohibiting Treasury Department employees, particularly auditors, from engaging in tax preparation, accounting or bookkeeping for compensation on behalf of private taxpayers because it constituted a conflict of interest or an appearance of one. In reviewing the Commission’s decision, the Court concluded that negotiations over the Treasury’s policy revisions prohibiting outside tax preparation would substantially interfere with the State’s managerial prerogative. Notably, the Court stated, “What is ethical or a conflict of interest cannot be determined at the bargaining table.” 267 N.J. Super. at 589. ¶

Similar to the Treasury in State of N.J. (OER) and CWA, the Board unilaterally amended its Policy to prohibit employees from engaging in certain outside employment due to concerns over conflicts of interest. The Policy changes were enacted to address the Board’s concerns that there had been and would continue to be conflicts of interest if guidance counselors and all other certificated employees received a fee for counseling services, particularly for college admissions. The Board expressed concern over college admissions advice provided by guidance counselors in their private capacity for a fee conflicting with their counsel provided in their official capacity to non-paying students.2/ This concern is substantially similar to the State’s concern over Treasury auditors preparing private tax returns for a fee and also being responsible for auditing those same returns. ¶

The Association argues that the Director misapplied or unduly relied upon State of N.J. (OER) and CWA, and diminished the Association’s other cited authority. The Association argues that State of N.J. (OER) and CWA is distinguishable because the Court’s analysis was based on its application of the New Jersey Conflict of Interest Law (NJCIL), N.J.S.A. 52:13D-12 et seq. The Association argues that absent this statutory mandate for the Treasury to avoid the appearance of conflicts of interest, the Court may not have countenanced the Treasury’s unilateral prohibition on outside tax preparation by its employees. The Association asserts that this statutory imperative is absent from this case as the NJCIL is applicable to State employees and not municipal employees. ¶

However, while the NJCIL was part of the Court’s analysis, it was not dispositive of the issues in that case. The Director correctly noted that the Court did not rely entirely on the statute in determining that the Treasury’s ban on private tax preparation by Treasury employees was non-negotiable. The Court stated, “[b]eyond this statutorily-imposed responsibility, however is the more basic responsibility of any government [including municipal] to ensure ethical conduct in government.” Thus, even if the NCIL was not implicated in State of N.J. (OER) and CWA, as is the case here, the Court’s reasoning regarding the non-negotiability of outside employment restrictions addressing conflicts of interest is still applicable. ¶

Furthermore, the Association’s reliance on its cited authority is misplaced, and the Director’s decision correctly distinguished the Association’s authority from the instant case. First, the Association cites Association of State College Faculties Inc. v. New Jersey Bd. of Higher Ed., 66 N.J. 72 (1974) for the proposition that the New Jersey Supreme Court has held that restrictions to outside employment were mandatorily negotiable. ¶

However, State of N.J. (OER) and CWA, decided in 1993, directly addressed Association of State College Faculties Inc. v. New Jersey Bd. of Higher Ed. and distinguished it.3/ State of N.J. (OER) and CWA stated that the Supreme Court found that the procedural changes to the outside employment policy, mainly concerning notice and prior approval, were mandatorily negotiable. The Supreme Court did not hold that substantive changes to outside employment policies addressing conflicts of interest were mandatorily negotiable. The Director’s decision noted that the Appellate Division recognized the distinction between substantive and procedural aspects of an outside employment policy, where the former are non-negotiable while the latter are negotiable. The Director’s decision correctly applied this distinction to the instant case, stating, “Since the [substantive] changes to the Board’s policy in this case, like the [substantive] changes at issue in State of N.J. (OER) and (CWA), do not involve procedural matters, Association of State Col. Fac. is inapposite.” We agree. ¶

Finally, we adopt the Director’s analysis of the Association’s other cited authority, Somerset County, P.E.R.C. 84-92, 10 NJPER 130 (¶15066 1984); City of Clifton, P.E.R.C. No. 91-106, 17 NJPER 307 (¶22135 1991); and Rutgers, the State University, P.E.R.C. No. 2004-64, 30 NJPER 109 (¶44 2004). ¶

Therefore, the Board’s unilateral change to the Policy was not mandatorily negotiable. The Director properly refused to issue a complaint because the complaint issuance standard had not been met. ¶

OrderORDER ¶

The refusal to issue a complaint is sustained. The unfair practice charge is dismissed. ¶

BY ORDER OF THE COMMISSION ¶

Chair Weisblatt, Commissioners Bonanni and Papero voted in favor of this decision. None opposed. Commissioners Jones and Voos abstained from consideration. Commissioner Ford recused himself. ¶

ISSUED: February 20, 2020 ¶

Trenton, New Jersey ¶

Note1/ These provisions prohibit public employers, their representatives or agents from: “(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act; and (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative.” ¶

2/ It is unclear in the record to what extent non-guidance counselors such as teachers provide similar counseling that is prohibited by the Policy. However, the Board’s legitimate concern over conflicts of interest remain whether a guidance counselor is providing the counsel for a fee or whether a teacher is providing similar counsel for a fee. As the Director notes, the Board’s outside employment policies do not prohibit teachers from tutoring students that they teach or evaluate. ¶

3/ It should be noted that the case is still valid precedent. The New Jersey Supreme Court denied a petition of certification despite its holding in Association of State College Faculties Inc. v. New Jersey Bd. of Higher Ed., 66 N.J. 72 (1974). Despite the Association’s assertion that Association of State Col. Fac. is the superior controlling precedent, as discussed infra, there is no conflict between the holdings of the two cases. ¶