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A new legal memo commissioned by the New Jersey Children’s Foundation concludes that there is no legal basis for the delay in seating a charter school teacher to Newark’s school board nearly three months after he was chosen to fill a seat.
The six-page memo, sent to the Newark Board of Education last Thursday, is a review and analysis of the unanimous vote in October for Thomas Luna to fill a vacancy and details the “current legal precedent” of his delay in being sworn onto the board. It outlines seven findings and concludes that “not seating Mr. Luna would violate the board’s legal authority and Board policy.”
The memo, drafted by William F. Koy, a partner at the Morristown-based William Koy law firm and former Mountain Lakes superintendent of schools, is meant to address questions Newark school board members may have about seating board members, said Barbara Martinez, executive director of the Children’s Foundation, a charter school-aligned nonprofit advocating for the improvement of public education systems. The memo does not signal a lawsuit against the district, Martinez added.
“We hope that this assists the Board in fulfilling their duties to fill open board seats,” Martinez said.
Since Luna was unanimously chosen to fill the vacancy, neither district officials nor board members have spelled out the reasons for not seating him. The only indication of why he has not assumed the seat came during November’s school board meeting when Board President Hasani Council attributed the delay to information the board received from a public records request and a review of School Ethics Commission opinions regarding conflicts of interest for board members.
Luna, who has twice run for the school board, said that he had not heard from the board or district about his role since the December school board meeting, when a motion to swear him in failed by a 4-2 vote, with two abstentions.
“I have yet to be placed on the agenda to be sworn in,” Luna added last week. “It is unclear, to myself or any member of the public, what exactly is warranting the lack of due process. What is clear is that this situation is incongruent with precedence, process, and protocol.”
The vacancy slated for Luna was left by former president Asia Norton and has been unfilled since Sept. 18, 2023, when Norton announced her resignation two weeks after the start of the school year. Council was sworn in as president shortly after her departure.
The new memo comes as district spokesperson Nancy Deering said last week that there are two vacancies on the school board, including the seat slated for Luna and an opening created when former member A’Dorian Murray-Thomas won a seat on the Essex County Board of Commissioners in November. There are no plans to swear in Luna at school board meetings in January, Deering added.
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She did not respond to a request for comment about the legal memo sent to the board last week.
Memo provides ‘legal background’ for seating members
Koy’s analysis cites legal precedent that Luna should have been sworn in November, a month after board members unanimously voted for him to fill a vacancy. It further says that neither state law nor board policies allow the board “to refuse to seat a person appointed by a majority vote.”
It also addresses ethical issues concerning board members and conflicts of interest.
Under state law, the School Ethics Commission has the sole jurisdiction to investigate ethics complaints against school board members in New Jersey. If the Newark board believes Luna’s employment with a KIPP charter school could violate the School Ethics Act, they should seek an advisory opinion from the commission or file a complaint with them after seating Luna, according to the memo.
Additionally, the memo found that the commission “would not penalize” the Newark board or any actions it takes with Luna as a sitting board member. It would only do so if a board member “participated in the voting or deliberation” of a specific action they would benefit personally from, according to the memo.
The state’s School Ethics Commission has not received any complaints against Luna, said Mike Yaple, spokesperson for the New Jersey Department of Education in an email to Chalkbeat Newark in December. He added that ethics complaints can only be filed against sitting board members or school members.
“If the person has not been sworn into the board of education the School Ethics Commission would not have jurisdiction until such time the individual is considered a board member,” Yaple wrote.
Koy’s memo also compared past cases where the commission determined that board members cannot serve in two roles without a conflict of interest but only in certain circumstances, such as when the board member holds a dual leadership role, or when the member’s regular employment requires them to answer to district administrators. Luna does not serve in a leadership role at KIPP Rise Academy but he is an employee of the school.
“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,” the memo reads.
Koy, in his legal memo, also pointed to school board members who have previously served and had ties to the KIPP charter school network.
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Former board member Rashied McCreary was also a teacher at KIPP Rise Academy when he was elected to the board in 2012. Norton, who was first elected in 2018, was a kindergarten teacher at KIPP Life Academy charter school when she ran for a seat on the school board. She left that position in June 2018 according to her LinkedIn profile. In 2021, Murray-Thomas’s appointment to the board of directors of the KIPP Foundation, a nonprofit that assists KIPP charter schools through training and fundraising, sparked ethics questions.
“We are aware of no prior concerns expressed by the Board concerning these former members’ employment with local charter schools,” the memo read.
School board members argue for Luna’s seat on the board
Board members have also expressed confusion by the delay in seating Luna and raised questions after the motion to swear him in, introduced by member Allison James-Frison, was shot down during the December school board meeting.
“It’s crazy because he was unanimously voted in as a board member in October so how do we not want to swear him in? This is the reason why we were under state control because we did not know how to operate and function,” said board member Crystal Williams, who voted in favor of swearing Luna in December.
Former member Murray-Thomas, whose last meeting was in December and abstained from voting for the motion to swear in Luna, said it would be “a distinguished honor” to have him and would be “disappointed as a voter in this city if he’s not on the board within the next couple of days, weeks.” She added that current members had not been briefed about the delay of his swearing-in.
“Personally, I think that we should have some kind of executive session for us to be informed on the full nature of it,” Murray-Thomas added.
The board is currently accepting applications to fill Murray-Thomas’s vacant seat until Jan. 18, according to Deering, when asked about the district’s post on Facebook. Deering, the district’s spokesperson, said “interested and qualified candidates should apply” and interviews are tentatively scheduled to happen during the February board meeting. Under New Jersey law, the board has 65 days to fill a vacancy.
This year’s school board race will be held on April 16 where the city’s 16- and 17-year-olds will be allowed to vote for the first time in history. Residents interested in running for a seat on the school board must submit their applications to the Newark Board of Education by Feb. 26
The voter registration deadline for the election is March 26.
Jessie Gómez is a reporter for Chalkbeat Newark, covering public education in the city. Contact Jessie at firstname.lastname@example.org.