On October 30th, 2023, the Newark Board of Education unanimously selected Thomas Luna to fill the seat of Asia Norton, a board member who had recently resigned. According to state law, school boards must fill a vacancy within 65 days and Newark school board members did exactly that, choosing Luna from a pool of ten candidates.

One problem: Three months later Luna has yet to be sworn in. 

Why?

At the November public meeting when the community expected Luna, a popular veteran teacher at a Newark charter school and co-chair for Newark for Education Equity and Diversity, to take his seat, Board President Hasani Council announced that a district review of School Ethics Commission (SEC) rulings raised the possibility of a “impermissible” conflict of interest for Luna. From all accounts, district administrators support Council’s claim.

But Hasani Council is wrong. According to a legal analysis by the law firm of William Koy commissioned by the Newark-based New Jersey Children’s Foundation, NJ law requires “that Mr. Luna be seated immediately, and that any potential conflicts of interest be presented to and decided by the School Ethics Commission or the Commissioner of Education.” Boards don’t get to decide “conflict of interest” on their own; that’s way above their pay grade.

NJ Ed Report requested comments from Hasani Council, Newark Public Schools Communications Director Nancy Deering,  and Luna. Only Luna responded:

“As of today, we have not heard back from the board concerning my being sworn in. I have a long history of advocating for kids and families in our city when it comes to equity in education. I devoted my life to teaching and mentoring Newark’s children. My passion for equity and education has me eager to get to work on behalf of Newark kids and families and more than qualified to do the work. This  is why I was unanimously voted, by resolution on October 30th, to fill the vacancy on the board. Now, for whatever reason, I am being denied the oath of office. This is incongruent with precedent and brings up a lot of questions about the board’s actions.”

Let’s look at the analysis commissioned by NJCF of the Newark School Board’s refusal to swear in a duly-appointed member (It’s a long analysis; we’ve reproduced the conclusion at the bottom of this article.)

• First, the Board is violating N.J.S.A. 18A:12-15, which says a board of education must fill a vacancy by a resigning member within 65 days. “Given that Ms. Norton resigned her position on September 18, 2023, that 65-day period now has long passed, and Mr. Luna should be sworn in and officially seated,” says Koy.

• Second, if the Board is concerned about a conflict of interest, it is outside of its purview to take independent action: that is within the sole jurisdiction of the School Ethics Commission. Further, a school board is barred from “carrying out penalties or sanctions under the Act against a particular school official” and “the regulations expressly forbid that a local board member take any part in the investigation or adjudication of an ethics dispute or complaint.”

• Third, Luna’s employment by a public charter school is not a conflict of interest:

 “Given that charter schools operate independently of their local school districts, Mr. Luna’s employment by a Newark charter school is no different than if he were employed by a separate school district. Although he perhaps should recuse himself from certain issues, such as labor negotiations or certain decisions regarding charter schools, he is not disqualified from board membership. To the extent the Board wishes to obtain guidance regarding issues on which Mr. Luna, once seated, must recuse himself, it is free to obtain an advisory opinion from the School Ethics Commission.”

The analysis notes that other charter school employees have served on the school board before, with no concerns expressed about conflicts of interest. In fact, Asia Norton, whose seat Luna is designated to fill, was a charter school teacher and was elected president of the Newark School Board.  “We are aware of no prior concerns expressed by the Board concerning these former members’ employment with local charter schools. Curiously, and for reasons unknown, we believe this to be the first time the Board ever has raised this particular issue.”

• Finally, “The Board cannot engage in self-help by taking the issue upon itself to adjudicate whether Mr. Luna has an impermissible conflict of interest. Any such determination lies within the sole jurisdiction of the School Ethics Commission and the Commissioner of Education. Accordingly, we would recommend that the Board move expeditiously to swear-in Mr. Luna.”

What will the Newark Board of Education do at its next public meeting on Tuesday, January 23d? Will it maintain its discredited position that Luna’s role as a teacher in another school district—charters are technically districts—disqualifies him from board service? Will it continue to usurp the role of the SEC?

Newark parents and community members wants to know.

Bonus irony:

According to Therese Jacob of Tapinto: 

“The personal disclosure statement [that the SEC requires all members to fill out]  asks board members: “Is any person related to you, or related to you by marriage, employed by the school district or a charter school in which you hold office or are employed?”

Hasani Council responded “No” on his personal disclosure statements in 2020, 2021 and 2022. He was elected to the Newark Board of Education in May 2020.”

But Council does have relatives in the district. His father is Newark City Councilman Patrick Council, who has been an employee of the district since 2003. (He gets $80.3K for his district job as “Youth Opportunity Coordinator”  and $100K for his City Council job.) One of his siblings has a job in NPS too. Now that’s a conflict of interest. Oops.

CONCLUSION VIA KOY:

“In sum, the Board does not have the power to refuse to seat Mr. Luna. Rather, it would violate existing legal authority and board policy in continuing to refuse to seat him. To the extent the Board is concerned with ethical issues which may arise from his activities as a board member, the appropriate course is to seat him and then file an action with the Commissioner or with the School Ethics Commission or request an advisory opinion from the Commission. In the case of the latter, the Board would not even be able to request an advisory opinion at this juncture because Mr. Luna has not yet assumed his rightful position as a board member. The Board cannot engage in self-help by taking the issue upon itself to adjudicate whether Mr. Luna has an impermissible conflict of interest. Any such determination lies within the sole jurisdiction of the School Ethics Commission and the Commissioner of Education. Accordingly, we would recommend that the Board move expeditiously to swear-in Mr. Luna.“

Photo courtesy of Tommy Luna.