On Jan. 16, 2024, the New Jersey Superior Court, Appellate Division, issued an unpublished opinion, Michael Skowronski v. Board of Education of the Township of East Greenwich, affirming the acting commissioner of education’s determination that a board of education was required, pursuant to N.J.S.A. 18A:12-20, to indemnify a board member for the reasonable legal fees and costs that he incurred in defending against an ethics complaint.
The former district superintendent filed the ethics complaint against Skowronski after he inadvertently copied a member of the public on an email message (by “replying all”) that expressed his (Skowronski’s) concerns with the manner in which the board and the administration was responding to and resolving a parent complaint, and additionally included his personal recommendations for how the board and the administration should handle the matter moving forward. While the ethics complaint was being adjudicated, Skowronski’s attorney sent a letter to the board demanding indemnification. The board advised Skowronski’s attorney that the request would be further considered after the ethics complaint had been resolved.
Despite an administrative law judge’s determination to the contrary, the School Ethics Commission found that Skowronski’s e-mail violated N.J.S.A. 18A:12-24.1(g), and recommended a penalty of reprimand. According to the SEC, not only did the substance of Skowronski’s email reveal confidential information from the board’s executive session discussion of the parent complaint, but it also contained information that had not fully been vetted and/or discussed by the board and the administration. Following an appeal, the acting commissioner of education affirmed the SEC’s finding of a violation and its recommended penalty.
Following the conclusion of the ethics matter, Skowronski’s attorney again sought indemnification from the board for his legal fees and costs. Ultimately, the board denied Skowronski’s request because, in its review, he did not have approval to disclose the board’s deliberative process and, therefore, was not acting in the course of his duties as a board member when the email was sent.
On appeal, an administrative law judge determined that Skowronski was entitled to indemnification because the conduct that resulted in the filing of the ethics complaint “arose out of and in the performance of his duties as a member of the board.” In support of this determination, the administrative law judge noted that Skowronski sent the e-mail in question from his board email account and sent it in direct response to an e-mail from the board president concerning a matter pending before the board. As a result, the administrative law judge concluded that Skowronski was entitled to indemnification under N.J.S.A. 18A:12-20.
The acting commissioner of education affirmed the administrative law judge’s determination that Skowronski was acting within the scope of his duties, and ordered the board to reimburse Skowronski for reasonable legal fees and costs. In affirming the administrative law judge’s determination, the acting commissioner of education noted that N.J.S.A. 18A:12-20 “protects both successful and unsuccessful litigants,” and the fact that Skowronski disclosed confidential information to a member of the public did not preclude the board from indemnifying him.
On appeal, the New Jersey Superior Court, Appellate Division found that the acting commissioner of education did not err in requiring the board to indemnify Skowronski. According to the Appellate Division, the acting commissioner of education’s decision was not arbitrary, capricious, or unreasonable, and was supported by substantial credible evidence in the record. Moreover, the acting commissioner applied the correct legal standard under N.J.S.A. 18A:12-20, and Skowronski was entitled to indemnification because his actions in sending the subject email arose out of and were in the course of his performance (and duties) as a board member.
What are the implications of this decision? If the filing of an ethics complaint against a board member is preceded by actions that arise out of and/or occur within the course of a board member’s duties and responsibilities, a board member may be entitled to indemnification from the board. In other words, if a board member retains legal counsel to defend against ethics charges, they may be able to seek reimbursement from the board for reasonable legal fees and costs. Whether a board member is entitled to indemnification pursuant to N.J.S.A. 18A:12-20 is a fact-specific inquiry, and can be discussed with board counsel.
As a reminder, this decision is unpublished and although it is binding on the parties in Michael Skowronski v. Board of Education of the Township of East Greenwich, it does not constitute binding legal precedent in all future matters. Unpublished decisions are not generally cited or relied upon to support arguments in other cases.