Fi McMillan, Special Counsel, and Kelly Thompson, Solicitor at Anderson Lloyd, share their insights for a comprehensive overview of the legislative changes under the Education and Training Act 2020, highlighting the importance of the Code in ensuring accountability, good governance, and positive board dynamics
One of the legislative changes provided under the Education and Training Act 2020, was that the Minister of Education could issue a code of conduct for school board members, and provide sanctions for failures to comply with the code. Sections 166-169 of the Act.
Many boards already had their own code of conduct, but found it difficult to enforce if issues arose with a board member. In a small number of schools a persistently non-compliant board member was able to disrupt board processes, cause distress to other board members (including the principal), and to damage the school’s reputation and standing in the community.
The Minister has now issued the long-awaited Code of Conduct for State School Board Members (the Code) which comes into effect for all board members on 21 June 2023. The Code sets out a list of 15 objectives that board members must, at a minimum, comply with. These include being culturally responsive and fair, being respectful of fellow board members, and engaging with the community in sensitive and appropriate ways. There is also a particular focus on board members making themselves available to undertake appropriate professional development, including a focus on Te Tiriti o Waitangi and good governance, and engaging with all people in the school community, including whānau, local Māori communities, iwi and hapū, fairly, impartially, promptly, and sensitively. The minimum standards of conduct apply to each individual board member.
Boards are able to add to the minimum standards in the code, by way of board resolution, if they wish to better reflect the culture and context of their school and community. Any additions must be consistent with the Code.
Board members will be legally required to comply with the Code, and a board may, by resolution, censure any non-compliant member other than the principal. Any issues relating to the principal must be managed in accordance with usual employment processes. If a board member significantly or persistently breaches the Code, and the board considers the member’s failure to comply with the Code warrants their removal from the board, then the board will be able to present the Minister with a written report and recommendation that the board member be removed. Where a Minister is satisfied there is just cause to remove the board member, the Minister may do so.
“Just cause” includes misconduct, inability to perform the functions of office, neglect of duty, or serious breach of any of the collective or individual duties of the board member.
Board members and the education sector largely welcome the news of the Code, and the vast majority of board members are already acting in a manner consistent with the Code. When a board member does not comply it is no longer a matter of simply putting up with it, despite the potentially serious implications for the school’s staff, students, and wider community. The Code can provide a deterrent to any non-compliant and disruptive conduct from a board member, and gives boards the ability to take action if it becomes necessary to do so.
The new Code will support boards in meeting their statutory responsibilities for good governance, and working together in the best interests of the school.
Fi McMillan is Special Counsel at Anderson Lloyd, specialising in employment and education law. Fi’s career started in the education sector. She completed a Post Graduate Diploma in Child Advocacy and taught at primary schools in Otago and the United Kingdom, before moving into law.
Fi believes that having experience out in the workforce is a valuable asset for employment lawyers, as it provides a context for developing workable solutions to workplace issues. Fi has represented employees and employers on a wide range of employment matters. Where a client is in a dispute situation she prefers to start with the co-operative approach, exploring options for resolution of issues rather than launching straight into formal processes. However, she is always determined to obtain the best client outcome, and has represented clients at the Employment Relations Authority and Employment Court.
Fi is the legal advisor to the New Zealand Principals’ Federation “Principals’ Advice and Support Scheme.” She has also worked on several school Boards, and on the Board of Knox and Salmond College. Connect with Fi via LinkedIn
Kelly is a solicitor at Anderson Lloyd, specialising in employment and education law, based in the Dunedin office.
Kelly studied at University of Otago, and graduated in 2021 with a Bachelor of Laws with Honours. She joined Anderson Lloyd in November 2021 and was admitted to the bar in 2022.
Kelly advises employers and employees on a range of employment matters, and works with her clients to find pragmatic solutions to difficult employment relationship issues. She also represents school principals on matters affecting their employment, through the New Zealand Principals’ Federation “Principals’ Advice and Support Scheme” (PASL).
Kelly is a member of the NZ Law Society’s Employment Law Committee and Otago Women Lawyers’ Society. Connect with Kelly via LinkedIn
