[This transcript was generated automatically from audio using AI and hasn't been reviewed by a person -- it can contain mistakes, including plausible-sounding sentences that were never actually said. Treat it as a starting point, not a verbatim record.]

[0:00] Welcome to
[0:15] NJSPA's podcast program, School of Law today. A program that discusses school
[0:21] law issues with school board attorneys throughout the state. Today's guest is Jonathan Bush and
[0:27] I'll introduce him formally later. And we'll be talking about the navigating the referendum
[0:32] process from his perspective and his background. Jonathan is the partner of the Bush Law
[0:40] So welcome Jonathan.
[0:43] Thank you. Thanks for that. I appreciate you having me.
[0:46] Just tell us a little bit about how long you've been in school law and a little bit about your firm before we get started on the referendum process.
[0:55] Absolutely. So I've been practicing school law for most of my legal career.
[1:02] It's pretty great to be able to practice law but do so within the constraints of the schools.
[1:07] you know if you're at any interest in education the idea of doing you know
[1:12] school law is really you know it's really the perfect job in my opinion
[1:20] yeah the
[1:22] firm yeah sure yeah do keep going yeah sure so so the firm the firm was the
[1:29] firm was founded in 2014 couple guys and I started the Bush Law Group and we
[1:36] started with, you know, seven clients in one county and we're up to 19 now in 10
[1:44] counties where as far north is, you know, high point regional up in Sussex
[1:49] County as far south as commercial township down in Cumberland County. So we're
[1:53] really far and wide across the state of New Jersey and we're doing some really
[1:57] interesting work with school boards in urban, suburban, you know, areas and in fascinating
[2:08] to see the way that these issues play out in various communities.
[2:13] Of course, the issue that we're talking about today is referenda and how boards respond
[2:19] to referenda and what school districts can do to keep themselves out of trouble if you
[2:26] will. Okay, before we get to the role of the board once they decide to do that, and they
[2:34] don't come to the decision of doing a bond referendum lightly, it's usually something
[2:39] that's decided with over the course of many discussions. Is there any advice you would
[2:44] give to a school board or school district before they make the decision from your perspective?
[2:50] So it's a great question, you know, typically speaking school districts rely on both their
[2:57] general counsel and their bond counsel for handling referendum projects.
[3:04] You know, the bond counsel really helps a school district put together a plan that is feasible
[3:12] and you typically would work if it's a capital project for example as most of these are, you
[3:17] work with your local architect and you also put together engineers and you put together
[3:24] a plan, that front-end work like you referred to earlier can be time-consuming and process
[3:30] oriented, but once you have presented a plan, the general council is really important
[3:38] to consult with because you need to be able to get a sense from them as to what you can
[3:46] and what you shouldn't do, because there really are a lot of rules that come into play
[3:52] and a lot of concerns under certain circumstances that may jeopardize a board's interest.
[4:00] Yeah, now the board decides usually through a vote that they want to place this on the ballot.
[4:10] That action in of itself kind of shows a support for the project.
[4:13] You want to put that on there if you aren't supporting the project, but during the education
[4:20] of the voters, they kind of, this goes back to when we had a lot of ballot, when we
[4:26] had the past budget a lot, they have to remain neutral, and what does neutral mean in educating
[4:32] the voters?
[4:34] Well, before getting into that, let me just say in your question, I have confronted and seen
[4:38] board members who may be opposed to their own referendums.
[4:43] So it's interesting because, like you said, the board is voting on a question, but there
[4:49] isn't supposed to be.
[4:50] And again, it may fly in the face of all that is practical, at least in most places.
[4:56] But in more unconventional circumstances, there are board members who oppose a referendum.
[5:02] Typically, they wouldn't put it on the ballot, but there could be a situation where a ballot
[5:06] question is presented and you know there's some controversy associated with it. So what
[5:13] we what we suggest oftentimes is is you know is is keeping the language neutral you ask
[5:23] what does neutral mean you know don't take a position. The theory in the law behind it
[5:27] is that if the board is is funding an election it shouldn't be taking a position on the election.
[5:34] So some people listen to this and say, well, how the heck we not take a position on something
[5:39] that we're presenting?
[5:39] Well, informational campaigns, informational campaigns where you describe the amount
[5:45] of money that's going to be proposed, what the project means, the impact it would have
[5:52] on the district, sometimes we're walking a fine line, but basically speaking, so long as
[5:58] you're not specifically asking people to vote yes, or in some cases, rare, but some cases
[6:04] vote no, then you've done your job, you've remained neutral.
[6:12] Just a piece of advice we usually give is you're trying to get it, hopefully the referendum
[6:18] if you really believe in it, you have all the board members on board, but you don't want
[6:22] to try to probably go into a referendum with the four three vote because I think that would
[6:28] be difficult message for your community.
[6:34] Just to agree.
[6:36] And the poll, yeah, well, real quick, I'm sorry to interrupt, but it is a very complicated
[6:44] political process, and each community is so different, right?
[6:47] I mean, we see that across the state in the districts we represent, you know, although we
[6:51] are lawyers and we give legal advice, you sometimes observe the politics that occur in some
[6:59] in some communities, the boards are really their own units and separate.
[7:04] In other communities, the boards are more tied to the township or municipal, I should say dynamic.
[7:09] And so those factors all play into, at the end of the day, whether or not a referendum passes.
[7:18] Now, when you say the board member, let's get into what board members and boards can do.
[7:23] But this is tied, particularly for the board, is that they cannot be expending this neutral
[7:30] campaign because they're expending district resources.
[7:34] Is that the debate?
[7:38] Let's be really clear.
[7:40] Just because the board of education, and I say board of education, I'm speaking of the legal
[7:45] entity of a board of education, just because a board of education can't publicly, as a board
[7:52] board act take a position on a referendum does not mean that board members individually
[8:00] may not take a position.
[8:01] In fact, board members often do effectively and are some of the best advocates for passage
[8:08] of a referendum.
[8:09] And so one of the things that we have seen is that board members ask questions like, what
[8:15] can I do?
[8:16] What am I able to participate in as a means of helping a referendum pass, because the
[8:25] first thought they have is that their hands are tied.
[8:27] Their hands are not tied, right?
[8:29] I mean, they can't speak from the microphone and encourage a yes vote in their capacity
[8:38] as a board member during a official time, like you said, using district resources.
[8:42] But they can speak and say that they're personally for the referendum.
[8:47] They can even probably do so from a microphone at a board meeting, so long as they say it's
[8:51] their own opinion and not the opinion necessarily of the board.
[8:57] We've said and told board members they can put up lawn signs, for example, assuming that
[9:02] there are lawn signs in a particular campaign which we've seen, you know, a vote yes, signary,
[9:07] vote no sign.
[9:08] They can distribute pamphlets, you know, they can go door-to-door.
[9:11] They have that first amendment right to do that just because they're a member of the board does not strip them of that right
[9:17] They can, although there's been no case law on this, they can donate to a campaign and I'll talk to you about that
[9:27] Maybe a little later, but some districts have chosen to form what are called political committees not not packs
[9:35] But political committees are similar to candidate committees in the context of New Jersey's
[9:42] Election Law Enforcement Commission, where you create a candidate committee for the
[9:45] purpose of running for office, groups of people in a particular community can form a political
[9:51] committee for the purpose of supporting or opposing a referendum question.
[9:57] So that's how you often end up with the yes or no signs.
[10:01] You have a political committee and a paid for line at the bottom of the sign just like you
[10:04] would if you were running your own campaign for public office they can donate funds to
[10:08] that.
[10:09] Letters to the editor, you know, in certain communities and not just letters to the
[10:13] editor could be, you know, letters to or posts on a blog.
[10:18] In some communities there are there are particular, you know, media entities that are highly
[10:29] effective and a local blog where people read frequently or look, let's take it to social
[10:37] media, social media posts, websites that relate to particular communities. You can post
[10:44] on all of those. Those are just like letters to the editor in the more traditional and
[10:48] print context, but you have to say that your writing is you individually and that is from
[10:56] you individually and that you're not speaking as a member of the board.
[10:59] and that relates to an older school ethics decision with respect to letters to the editor.
[11:05] Right, and before we get on to my next lecture, if anyone has a question, they can type it in the chat room.
[11:11] You can log in to the chat room. You just have to register with a blog talk radio.
[11:16] Or you can call 1-3-4-7-989-8904-1347-989-8904
[11:26] and just press one and Mike is working our switch board and he'll get the question up to me
[11:32] and your name and everything else. Just going back to yours, when you were talking about the social
[11:41] media and writing stuff, letters to the editor, you put the disclaimer that you're speaking for
[11:48] yourself as an individual, not as a board member. That's correct, right? Yeah, absolutely. Now it's so
[11:54] important because yeah go ahead. And so a lot of these laws that we the was that are governing
[12:00] a board role here is comes from the school ethics commissions rulings.
[12:06] It's correct. It comes
[12:07] from the school ethics commission ruling and again there are two important decisions I think to note
[12:12] and in fact I'm going to plug another school board publication if I can during this conversation
[12:19] in the most recent school leader magazine I think it's the January February 2017 edition
[12:25] Doug Silvestro from my office, and I authored basically a written version of the subject of
[12:33] this podcast, which is called How to Successfully Navigate Your Board Through the Referendum
[12:37] Process.
[12:39] I think it begins on page 12, and I outline and describe some of the decisions of the School
[12:48] Ethics Commission that are most helpful.
[12:50] There's no specific decision on a board member's, you know, a board's involvement in
[12:59] a referendum except for one that involves two current board members who were opposed
[13:04] to a referendum and it addressed the essential question, I guess, is do you have a right
[13:10] to oppose the Board of Education's referendum and the answer was, of course, they do.
[13:20] they have a right just like anybody has a right to support
[13:22] the referendum
[13:24] right and i i guess as we move through this
[13:27] when we start talking about what the board member can and cannot do
[13:31] in support of a referendum
[13:33] the reverse holds true
[13:35] for the opposite they have put their to one board member who opposes it
[13:38] they can still write the letters they can still post on uh... social media
[13:42] they can do the same things
[13:45] just in opposition to the the referendum
[13:47] them if they're to loan to sent to sentin vote.
[13:51] You know the mindset ray for a board member in a district that is presenting a referendum
[13:57] to the voters should be we are presenting this referendum to the voters here is what
[14:03] it would do if it passed here's what it would do if it failed this is a proposed plan let
[14:11] us know if you support it or not by going to vote please vote it's important to vote that's
[14:16] about the limit you can say in your official capacity again
[14:18] you can buy you on sign you can contribute you can do all those other things
[14:22] some of the things that you have to be particularly careful about again is
[14:25] is claiming to speak
[14:27] on the board's behalf without
[14:29] the authorization to do so
[14:30] uh... you're really really cannot
[14:33] and this is important because it could potentially
[14:35] carry other
[14:36] concerns but uh... you know i i i think concerns
[14:40] boards have to be very careful about
[14:43] potentially spending district resources to support or oppose and usually the
[14:49] context that we're concerned about most would be a district using district
[14:53] resources to support a referendum. For example, telephone lines, you know, you
[14:58] may not pay any additional money.
[15:01] The fact that you could potentially be using a telephone in your district. Again, this sounds
[15:08] fickle, but it could be an issue. If you're using your telephone to make phone calls, to
[15:13] encourage people to vote yes, that's a problem. You can't do that. If you're using a district
[15:19] email because you're a district employee, let's say, or a board member and you have a district
[15:23] address, and you're sending out emails, encouraging people to vote yes, that's a problem potentially.
[15:31] Again, you're allowed to express your opinion, but you can't be using district resources to support a position one way or the other.
[15:40] The other issue we see with board members sometimes is sharing information that's not otherwise available to the public.
[15:47] and if you have information about the referendum that's not public information and I mean something
[15:54] that's subject to say attorney-climate by something your bond counsel told you or something
[15:58] your general counsel told you and you go out and you describe that that's as a way of
[16:04] either undermining or supporting the referendum that's a potential concern and the biggest
[16:10] issue we see is let's get back to that disclaimer for a second ray and that's writing an opinion
[16:15] on either Twitter or Facebook or a blog or a letter to the editor without the
[16:24] disclaimer language. According to School Ethics Act is a specific violation of
[16:29] the rules of ethics that all board members are subject to in the State of New
[16:34] Jersey. Okay, I have a caller. Jay, you have a couple of questions. Do you want to get
[16:42] on the bidding process.
[16:48] Hi, thanks for taking my call.
[16:50] I just had a question going through the process.
[16:53] If you were initially in the stages of a capital project,
[16:57] a new construction or something along those lines
[16:59] and you're working with the engineer and architect firm,
[17:03] would it be wise to get more than one different firm or company
[17:08] to use for proposals for initial estimated costs that ultimately are going to be what's on the ballot.
[17:15] Is this something that happens in the past or is that something that you would recommend doing?
[17:19] Yeah, so that's a great question and I have seen that.
[17:21] I saw that a couple of years ago in a district that I've been working for years.
[17:25] You know, you have proposals from architects because look, you're not supposed to do this often, right?
[17:33] It's supposed to be a once in a while task, a once in a while activity.
[17:38] It's how you maintain your credibility with voters.
[17:40] So when you do it, you got to make sure that you do it with every bit of effort and every thought considered.
[17:50] So when you're asking about architects and engineers, look, all professionals will come to this with different idea.
[17:58] And so I think asking for the proposals is a way for you to be able to tell your public,
[18:05] and again, this is from an informational standpoint, this would be okay.
[18:10] And even from an advocacy standpoint where you're wearing your advocacy hat,
[18:14] which is, again, not in your physical capacity as a board member,
[18:16] but you really want to be able to say that you considered everything.
[18:19] And that the reason that you came up with the particular approach that you're presenting is X, Y, and Z.
[18:25] and that other plans may have presented A, B and C, but X, Y, and Z was better because,
[18:32] you know, for whatever reason.
[18:34] So I think it's essential that you get proposals, you know, and I know that, you know, it can
[18:40] be difficult, especially in a place where an architect or an engineer has been for years,
[18:45] you know, you have your district architect or your district engineer.
[18:49] But that doesn't necessarily mean that some fresh ideas aren't important and it's something
[18:54] that, you know, the district has to care, you know, carefully consider. So it's a good
[19:00] idea to answer your question.
[19:03] Great, thanks for taking the call.
[19:04] Okay.
[19:04] Absolutely.
[19:07] Yeah, that's kind of the, I think when you go forward with the referendum, your public really
[19:12] wants to know that you kind of went through everything. All the steps in that, you covered
[19:16] all your bases, and this is the proposal before that you ask all those questions.
[19:24] And Ray, you're asking your public for millions of dollars that the board wouldn't otherwise
[19:29] have the authority to spend in doing so.
[19:31] How could you do it without telling them that you turned every rock over and made sure
[19:36] that you did the best for them in presenting it, and that you saved them as much money as
[19:40] possible?
[19:42] Now, I just want to switch gears a little bit, and this will hold for both a board member
[19:46] who might support or oppose.
[19:48] There's a lot of people involved in the community and sometimes, oftentimes, the district has
[19:55] a referendum, the superintendent, the business administrator or some of the board members
[20:01] may go to organizations like the parent groups, the PTA.
[20:05] Are there any restrictions in that area if a, say, the board president and the superintendent
[20:09] want to go to PTA meetings and talk to the parents about the proposal?
[20:13] are there any restrictions that they have?
[20:17] You know, again, they can go and explain their person.
[20:20] So they can certainly provide informational campaigns.
[20:23] And let me also say that we have seen
[20:26] districts print flyers that are
[20:30] informational in nature.
[20:33] And, you know, they are really
[20:38] designed in a way that some people would suggest
[20:42] you know, advocate for passage. But again, if the language doesn't specifically advocate
[20:48] for passage, the informational aspect is encouraged. It really is. As long as it's done
[20:54] within reason, and I think the school accountability regulations speak to that to some degree. I'm not
[20:59] going to get into that now, but the informational aspects of the campaign in general, I don't
[21:10] yes or no i mean the district's campaign to educate
[21:13] it are central so part of that i think is to go around a community organizations
[21:17] pto's are are huge part of most communities
[21:20] uh... school district you know political activism in in in our great resource
[21:25] for getting people to vote
[21:26] so yes i would highly encourage a superintendent
[21:29] and say a board president or anyone else
[21:31] uh... to go and at least in advocate for an informational standpoint
[21:35] the
[21:36] there's nothing restricting a superintendent
[21:38] and or a board member from going to one of those meetings and advocating for passage as
[21:45] well, so long as they follow the rules that we talked about earlier and they're doing
[21:48] in their personal capacity and they let everyone know that.
[21:52] And your parent organizations, I guess in your education, the teachers union, they can advocate
[22:01] as much as they want for this proposal.
[22:06] They can, and they do, Ray, they can, and they do, Ray, you know, another piece of this
[22:10] that I've seen that can be very successful are, you know, something called project labor
[22:13] agreements.
[22:15] And project labor agreements are agreements by boards of education to do everything they
[22:21] possibly can to use organized labor when push comes a shove if the project passes and they're
[22:26] building something.
[22:27] You know, there are the criticism of the potential for project labor agreements is it almost
[22:33] always increase the costs. I don't necessarily agree with that. And I've had
[22:37] conversations with labor leaders over the years, over the years that have suggested
[22:41] otherwise. But, you know, that's a perception of people. It sometimes has to be
[22:45] overcome. That being said, if a district adopts a project labor agreement where
[22:51] they're basically agreeing to go forward with, you know, organized labor, when
[23:01] then they construct whatever their project is a new school or an addition to the school
[23:06] or multiple editions or multiple, you know, construct schools, you know, what you find
[23:12] is an incredible, obviously, incredible amount of support from organized labor, from unions
[23:19] in New Jersey because, obviously, if this thing passes, there's an opportunity for a lot
[23:25] of jobs and so you do see a correlation between the passage of, again, what are called
[23:33] Project Labor Agreements and the assistance in passing a referendum with the assistance
[23:41] of, you know, of organized labor and, you know, I can't say enough about that in my experience
[23:46] over the years.
[23:48] And in most districts, the teachers and the staff support something like this because it
[23:53] usually improves their work environment.
[23:56] Well, the NJA has done a great job at putting support
[24:03] and even lots of money in some cases
[24:05] into campaigns to support referendum.
[24:08] Because again, if you're going to build new schools likely,
[24:12] you're going to need more teachers and more staff.
[24:16] And beyond that, like you said, right, it depends on the proposal.
[24:22] But typically speaking, it will enhance the environment in which these people work.
[24:27] So of course, they're trying to support education.
[24:33] Going back to, like, if I've heard of board members doing this because going back to
[24:39] your original, sometimes they feel hesitant in that neutral thing as a whole board, they
[24:44] take personally, that they can't do anything as an individual.
[24:48] So, if they're speaking, just say it's a board member.
[24:51] Maybe they're a parent and a member of the PTA and they feel they're asked by the PTA members.
[24:56] Are you supporting this?
[24:58] They can just floor out. Yes, I'm supporting it personally.
[25:02] I think it's a good project. I'm speaking as a board as an individual in this case.
[25:08] Because I've heard a board member say, well, I can't talk to that.
[25:11] And that kind of can really hurt your potential passage of it if the board member is not individual.
[25:16] individually speaking on behalf of that right so and that's why a lot of board members are not a lot of board members are you know
[25:24] they're elected officials but they're not politicians right so they do their best to to stay out of trouble and and speak from the heart and
[25:31] that's important with what you're describing because yes people are become so afraid of what you can't do and this is one of
[25:38] the issues we face as lawyers in general I mean in my firm you know we try to give people practical advice because
[25:43] because there's so much about what you can't do that they forget about everything they can.
[25:48] And in this case, really, you can almost do everything else that anyone who's not a
[25:54] board member can do, except when you're sitting at that dais and you're writing a letter
[26:00] to the editor.
[26:01] That's really the only, you know, on a blog or a Facebook, when I say letter to the editor,
[26:04] I'm really speaking about all the formats because these days are far more than just a letter
[26:07] to the newspaper, right?
[26:08] So, but you really can do everything that everyone else can do, except when you're at the
[26:13] days at the board meeting, right, or speaking somehow in your official capacity as a board member.
[26:18] If you're, you're, you're getting, there's even a probably a way for you, all those questions
[26:23] not been addressed directly by the school ethics commission, but to speak from your chair
[26:26] as a board member, to say what you personally believe.
[26:29] So even when you're at the day as you can do it, but again, it has to be made clear.
[26:33] As long as you say this and then say, but this is my personal opinion and as a board member
[26:38] I'm not representing the, you know, the board in this position, that is, you know, that's
[26:43] essential.
[26:43] So, my advice is there's a lot more you can do than you can and then don't worry so
[26:48] much.
[26:49] And say we're, we'll be very positive thinkers here and your district passes the referendum.
[26:55] Are there any restrictions can they, it's not a blank check that the money that the referendum
[27:01] and say it's a million dollars for replacing air conditioning in windows, say it comes under
[27:07] that the bid process and they have extra money, can they just spend that money however they want?
[27:14] No, absolutely not, and that's a big issue.
[27:18] Again, talk about trust of board members and the trust of the public who elect them and the project that's being presented.
[27:27] You know, Ray, you think about it, you're asking them for a specific dollar amount to do something very specific.
[27:37] You cannot do anything else than that which you said you would do in the proposed question.
[27:43] And even if you said something during an informational campaign but it's not in the actual question,
[27:49] you have to stick to what it is that you presented.
[27:52] And that's something that you and your bond council will have to really discuss
[27:55] if you're a board member you have to discuss with your bond council because if there's something that you think should be in there but it's not and you're still within the deadline to present the Department of Education and your local board of elections then you really have to make sure that that that's in there because you can't educate the public on something that you know they're not voting on and again the money certainly can't go to just whatever they want air conditioning windows so that's important. I'll tell you one other quick piece and that is
[28:25] One of our districts recently had a devastating fire to one of its schools and as a result had
[28:33] to construct an entirely new school building but was unable to find the resources obviously
[28:41] without a referendum to construct a new school, part of it was because they were in the process
[28:46] of arguing with their insurance carriers to how much money was owed but they needed to
[28:53] start the project knowing they'd get insurance money later
[28:56] but they had no authorization to do so from the department of education until
[28:59] such time as they had
[29:00] money that was guaranteed to them in some way
[29:03] so they went out to referendum for the amount of the school
[29:06] but at some point got the money needed from the insurance company
[29:09] and as a result did not have to pay
[29:12] one
[29:13] dollar
[29:13] uh... out of the referendum so the voters basically gave them permission
[29:18] if necessary to spend this money
[29:19] but once they got the money secured from the insurance carrier, they didn't have to spend
[29:24] one of those dollars.
[29:25] And, you know, again, that is the type of thing that you could really do, and hopefully
[29:29] gain the trust of your voters to understand that we're not just spending your money, we're
[29:33] doing so responsibly, and when necessary, we don't spend it at all.
[29:36] So basically, the vote served to allow them to begin construction of this brand new school,
[29:41] which I'm happy to say, and proud to have been a part of just opened this past January.
[29:46] Well, okay, we've come to the end of it, so your basic message there is that while you have limited ability to promote it as a board.
[30:00] As an individual, you have quite a bit of a latitude in promoting a referendum. Absolutely, and thanks so much for having me, Ray. Appreciate it. Thanks, and that's Jonathan Bush with the Bush Law Group in Middlesex County. So I think you all for listening. If you have any questions, you can email me and I'll pass them on to Jonathan. Thanks, Jonathan. Take care. Thanks, Ray. Okay, bye-bye.
[30:23] Thank you very much.