The School Ethics Commission (SEC) recently issued a decision finding that a school board member violated the School Ethics Act when he filed a claim against the board before the New Jersey Commissioner of Education.

In reaching this conclusion, the SEC found that the board member’s actions exceeded the scope of authority for an individual board member and could have compromised the board by damaging the public’s trust in it.

In C25-16, the board member expressed procedural concerns related to the superintendent’s contract renewal. By way of background, the superintendent’s contract contained a provision that required her to notify the board of her desire to renew the contract by a specific date. It further provided that if the board had not given the superintendent notice of intent to renew her contract within a certain timeframe, then no offer of renewal was being made.

Neither the superintendent nor the board provided timely notice as per the contract. However, N.J.S.A. 18A:17-20.1 provides that a superintendent contract will automatically renew unless the board (1) provides notice of nonrenewal by a certain date or (2) reappoints the superintendent to a different term.

The board member and the board attorney disagreed about whether the superintendent’s contract had automatically renewed. Because of these concerns, the board member filed an emergent action, seeking to have the commissioner address the alleged procedural concerns in the renewal process. Prior to the superintendent’s renewal, the board attorney advised the member that such an appeal could not be filed without the approval of the majority of the board.

However, the board member asserted that the petition was filed in good faith, as it sought to prevent the board from incurring liability as a result of following allegedly unlawful procedures.

Following the board member’s emergent relief filing before the commissioner of education, another member of the school board filed a complaint against him  before the School Ethics Commission, a separate entity under the auspices of the commissioner with jurisdiction only over alleged violations of the School Ethics Act.

The ethics complaint alleged that in filing for emergent relief before the commissioner, the board member violated multiple provisions of the School Ethics Act.

The SEC agreed and expressly found that the board member “instituted a proceeding adverse to the District in which he serve[d] as a member of the Board.” Furthermore, according to the SEC, by representing himself in his capacity as a board member and challenging the actions of the board president and board attorney in their respective official duties as they pertained to board business, the board member violated the statutory preclusion against school officials representing any other party against the board on which they serve.

Additionally, the SEC also adopted the determination of the administrative law judge who previously heard the matter and found that the board member violated a second provision of the School Ethics Act, N.J.S.A. 18A:12-24.1(e), which requires a board member to recognize that authority lies with the board and prohibits a board member from taking action that may compromise the board.

By filing the claim before the commissioner and thereby seeking to circumvent board action, the board member exceeded his authority as an individual board member, according to the decision. Moreover, the board member’s accusations in the publicly available complaint could have eroded public trust in the board, according to the commission.

Although the SEC adopted the administrative law judge’s factual findings and legal conclusions, the commission rejected the recommended penalty of a reprimand and modified the recommended penalty to censure. In modifying the penalty, the SEC noted that the board member received annual training on the School Ethics Act requirements and acted against the advice of the board attorney.

The SEC decision further stated: “If a lone Board member is unable to convince his or her fellow Board members of his or her position, then the Board member’s recourse is to address the issue in public, or to vote against a resolution or action that he may disagree with. The recourse, is not, for Board members to take matters in their own hands and to file a public proceeding against other members of the Board.”

As of the time of this writing, the NJSBA is not aware of whether the finding of School Ethics Act violations and/or the sanction imposed in this matter has/have been appealed. The decision left open the question of how widely the SEC’s reasoning may apply to claims brought by board members against the district in their capacity as a district resident, parent, or other role.

School board members are encouraged to discuss this decision and the requirements of the School Ethics Act with their board attorney. For additional information, please contact the NJSBA Legal and Labor Relations Department at (609) 278-5254.

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