The School Ethics Commission took the following action at its meeting on Dec. 17, 2024: discussed one ethics complaint pursuant to the SEC’s previous regulations; discussed six ethics complaints in accordance with the SEC’s new/amended regulations; considered adopting three decisions (C75-19; C50-21 and C72-21 (Consolidated); and C90-23); and considered one new advisory opinion request, and also making it public.
Of the three decisions considered for adoption, two were posted on the SEC’s website; therefore, the remaining matter, C50-21 and C72-21 (Consolidated), remains pending. In addition, the advisory opinion request considered by the SEC (A15-24), assuming a decision was adopted, has not yet been posted on the SEC’s website.
Final Decisions
After the SEC transmits a matter to the Office of Administrative Law, an administrative law judge is then tasked with adjudicating the remaining claims in the filed complaint. Following a hearing(s), the filing of a dispositive motion(s), or a settlement (in some matters), the administrative law judge issues an initial decision, and then returns the matter to the SEC. Following receipt of the initial decision, the SEC can then affirm, modify, or reject the findings of fact, legal conclusions, and/or recommended penalty (if any), and the SEC’s determination is memorialized in a final decision.
Following the filing of a four count complaint in C75-19, the SEC dismissed Counts 1 and 2 because the complainants failed to plead sufficient credible facts to support the stated violations of the act. In Count 3, the complainants argued that the respondent violated N.J.S.A. 18A:12-24(b), N.J.S.A. 18A:12-24.1(e) and N.J.S.A. 18A:12-24.1(f) because she publicly endorsed three candidates (“Team 147”) running for the board in a video that was posted on Facebook. The caption for the video said, “Thank you to Lacey School Board Member Discenza for her endorsement and support! With a new majority on the school board, we can bring a new year of change and fiscal responsibility.” In the video, the respondent wore her board identification badge and said, in relevant part: “I am currently serving my second term on the … board”; “Please help me serve you the taxpayers … and vote for Team 147 to assist me on the board”; “There is a 28-year incumbent candidate with conflicts and another with lifetime connections to employees [running for reelection]. They do not have the ability to act impartially”; “Team 147 has no conflicts of interest and no relatives working for the district”; and “ … I endorse and support [Team 147].”
In Count 4, the complainants contended that the respondent violated N.J.S.A. 18A:12-24(b) and N.J.S.A. 18A:12-24.1(e) because, on behalf of the board, she went to a polling site to “collect a copy of the tally sheets and tapes.” Although the respondent’s initial request was denied by a poll worker, she was ultimately able to secure the tally sheets and tapes. The respondent maintained that she requested the tally sheets and tapes on behalf of Team 147, and not on behalf of the board.
The SEC found probable cause for the allegations in Counts 3 and 4 and transmitted the matter to the OAL.
After the filing of cross-motions for summary decision at the OAL, the administrative law judge found that the respondent violated N.J.S.A. 18A:12-24(b), N.J.S.A. 18A:12-24.1(e), and N.J.S.A. 18A:12-24.1(f)in Count 3. Following a hearing regarding the claims in Count 4, and because the administrative law judge found that the respondent was entitled to request and obtain a copy of the tally sheets and tapes, and that it was not sufficiently demonstrated that the respondent referenced her position on the board or otherwise used her position to obtain the tally sheets and tapes, the administrative law judge concluded that the respondent did not violate N.J.S.A. 18A:12-24(b) or N.J.S.A. 18A:12-24.1(e)in Count 4. For the violations in Count 3, the administrative law judge recommended a penalty of reprimand.
In its review of the administrative law judge’s initial decision, and after reviewing the framework for its decision-making in social media/disclaimer cases (Count 3), the SEC found that “ … there [was] a sufficient nexus between Respondent’s video endorsement and her board membership” and, given the context of the respondent’s video endorsement, “a reasonable member of the public would perceive that the school official is speaking in his or her official capacity or pursuant to his or her official duties.” Moreover, “… by recording the video endorsement in her capacity as a board member, Respondent used her official position to secure unwarranted privileges or advantages for herself and/or Team 147” in violation of N.J.S.A. 18A:12-24(b); “Respondent’s direct endorsement in her official capacity as a board member is action beyond the scope of her duties” and “call[s] into question the impartiality and autonomy of the board and its members” in violation of N.J.S.A. 18A:12-24.1(e); and “Respondent used the schools and her position on the board to acquire a benefit for herself and her friends by encouraging the election of Team 147 in her official capacity as a board member” in violation of N.J.S.A. 18A:12-24.1(f).
As for Count 4, because the administrative law judge found that the respondent was entitled to request and obtain tally sheets and tapes, and found that it was not sufficiently demonstrated that the respondent identified herself as requesting the tally sheets and tape on behalf of the board, the SEC agreed with the administrative law judge that neither a violation of N.J.S.A. 18A:12-24(b) nor N.J.S.A. 18A:12-24.1(e) could be supported.
In terms of the penalty, the SEC modified the recommended penalty of a reprimand in favor of a censure. According to the SEC, the respondent’s video endorsement was blatantly inappropriate; her conduct warrants a severe sanction, especially given that the SEC’s stance on disclaimers is abundantly clear; the respondent’s behavior in her official capacity went far beyond a permitted endorsement; and the respondent’s blatant disregard for the SEC’s clear advice and recommendations regarding political endorsements and disclaimers warrants a heightened penalty, such as a suspension. However, because the respondent is no longer a board member, the SEC was constrained to recommend a penalty of censure for “Respondent’s blatant ethical violations.”
In C90-23, the complainant asserted that the named respondent violated multiple provisions of the act in a seven count complaint. However, following a probable cause determination, the only allegations remaining and subsequently transmitted to the OAL were the purported violations of N.J.S.A. 18A:12-24.1(e) and N.J.S.A. 18A:12-24.1(g) in Count 4. The SEC’s decision did not detail the factual basis for the claimed violations of the act.
While the matter was pending at the OAL, the parties decided to settle their dispute and agreed, among other things, that neither engaged in any wrongdoing; the respondent would “refrain from using Photoshop or any similar image-editing software to alter images of school property in any context related to campaigning or campaign literature, public communications related to board matters as a board member, or on social media platforms as a board member related to board business”; and the complainant would voluntarily dismiss her complaint.
Given the parties’ decision to amicably resolve their dispute, the SEC adopted the initial decision (settlement) as its final decision (settlement), and the matter was dismissed.
SEC’s Next Meeting
The SEC has not yet posted its 2025 meeting schedule, but it is anticipated that its January meeting will be Jan. 21, 2025, or Jan. 28, 2025.
As a reminder, school officials who would like to request an advisory opinion regarding their own or another school official’s prospective conduct may do so through the SEC.
For further information about these matters, please contact the NJSBA Legal and Labor Relations Department at 609-278-5279, or your board attorney for specific legal advice.