On Jan. 11, 2024, and Jan. 16, 2024, the School Ethics Commission convened special meetings to discuss a “request for interlocutory review” in connection with a matter previously transmitted by the SEC to the Office of Administrative Law.
In essence, a party to the litigation asked the SEC to review a “non-final” decision or order issued by an administrative law judge. Based on the approved minutes from the Jan.16 meeting, the SEC granted the request for interlocutory review; how the matter will be impacted moving forward will become clearer at future SEC meetings.
A week after its special meeting on Jan. 16, the SEC held its first regularly scheduled meeting of the year on Jan. 23. At this meeting, the SEC discussed three ethics complaints pursuant to its previous regulations, three ethics complaints pursuant to its new/amended regulations; adopted six decisions in connection with previously discussed ethics complaints; considered three new advisory opinions (A01-24, A02-24, and A03-24); and considered making five advisory opinions (A59-95, A15-23, A16-23, A01-24, A02-24, and A03-24) public.
Of the six decisions adopted by the SEC, four were posted on the SEC’s website; therefore, the remaining matters remain pending. In addition, none of the five advisory opinions that the SEC considered making public have been posted on the SEC’s website, which is either because the SEC did not have the required number of members present (six) to make the opinions public, or because the SEC did not have a sufficient number of affirmative votes to make the advisory opinions public.
Posted Decision: Violation
In C12-23, the named respondent was appointed to serve as acting superintendent in 2021. Following her appointment, the respondent “recommended and approved actions that affected her [spouse’s] compensation.” In response to concerns from community members, “precautions were implemented to ensure the respondent was not involved in matters related to her spouse’s employment.”
A few months later, a list of more than 160 substitute teachers, including the respondent’s child, was on the agenda for the board’s approval. Instead of allowing another district administrator to recommend the approval of their employment (which included her own child), the respondent made the recommendation. As a result, the complainant contended that the respondent violated N.J.S.A. 18A:12-24(b) and N.J.S.A. 18A:12-24(c) when she recommended the continued employment of her own child as a substitute in the district. Of note, the complainant additionally contended that the respondent’s conduct violated N.J.S.A. 18A:12-24(a), and that other conduct violated other provisions of the School Ethics Act; however, those claims were dismissed by the SEC.
Although the respondent’s child worked as a substitute teacher in the district before she was appointed to serve as acting superintendent, and although the recommendation of her child was “inadvertent and unintentional,” the SEC found that “Respondent’s failure to recuse herself on the recommendation of her child’s employment constitutes using her position as superintendent to secure an unwarranted privilege, advantage, or employment for her child, in violation of N.J.S.A. 18A:12-24(b).” The SEC additionally found that the recommendation constituted action “in her official capacity in a matter where her child had a financial involvement, which might reasonably be expected to impair her objectivity or independence of judgment,” and action “in her official capacity in a matter where she had a personal involvement that created a benefit for her [child]” in violation of N.J.S.A. 18A:12-24(c).
In light of the fact that the respondent did not act “deliberately or intentionally, and she did not realize her [child’s] name was on the list of substitute teachers,” the SEC recommended a penalty of reprimand. Even though it was appreciative of the respondent’s contrition and acceptance of wrongdoing, the SEC admonished the respondent that, as the chief school administrator, it is her responsibility “to carefully examine all agenda items prior to Board meetings to ensure that she abstains from all matters in which she has a conflict of interest in order to preserve the public trust.”
Posted Decisions: Dismissals for Lack of Probable Cause
Three “PC review” decisions, or “probable cause review” decisions, were adopted by the SEC at its Jan. 23 meeting. According to the SEC’s amended regulation, “Probable cause shall be found when the facts and circumstances presented in the complaint and written statement would lead a reasonable person to believe that the [School Ethics Act] has been violated.” N.J.A.C. 6A:28-9.7(a).
In the first decision, C46-23, the former chief school administrator filed an ethics complaint against nearly every member of the board and asserted that they violated N.J.S.A. 18A:12-24.1(a) when they “‘[i]mproperly and in bad faith’ determined that a quorum of the [b]oard was conflicted from voting on personnel matters involving [him], and therefore, improperly invoked the Doctrine of Necessity in order to vote and certify Tenure Charges against [him], cutting off [his] compensation and health benefits.”
Because the complainant, despite being required by N.J.A.C. 6A:28-6.4(a)(1) to establish a violation of N.J.S.A. 18A:12-24.1(a), failed to provide a copy of a final decision from any court of law or other administrative agency demonstrating or specifically finding that the respondents violated a specific law, rule, or regulation when they engaged in any of the acts/conduct alleged in the complaint, the SEC dismissed the complaint for lack of probable cause.
In the second decision, C51-23, the complainant claimed that the named respondent violated N.J.S.A. 18A:12-24.1(a) when, following the community’s vote to support the implementation of full-day kindergarten in the district, she made a motion to suspend all plans and efforts to implement full-day kindergarten, the effect of which would have negated the community’s vote; violated N.J.S.A. 18A:12-24.1(c) because she made the motion without discussing it with the board and “without consulting … the parents of [the] kindergartners” who would be affected by her motion; violated N.J.S.A. 18A:12-24.1(d) because her motion to halt full-day kindergarten was a “clear attempt to administer schools”; and violated N.J.S.A. 18A:12-24.1(f) because she made the motion “at the specific request of a partisan township resident” and read directly from materials the resident provided to the board, thus surrendering her independent judgment.
After review, the SEC determined that probable cause did not exist because the complainant did not provide a final decision finding that, as claimed, the respondent’s motion violated a specific law, rule, or regulation; the respondent withdrew her motion after it was discussed by the board; making a motion at a board meeting is within the role of a board member, and is not an attempt to administer the schools; the board, and not the administration, has the authority to approve and implement full-day kindergarten; and board members are permitted to consider public comment at a board meeting and to make motions and/or vote in accordance with the board member’s opinion. Therefore, the SEC dismissed the complaint and, despite the respondent’s request for the SEC to find the complaint frivolous and to impose sanctions, the SEC declined to do so.
In the final decision, C52-23, the named respondent, in response to an article “challenging” the board’s “oversight of the time and cost” the chief school administrator spent on professional development” and “questioning” the chief school administrator’s ethics filing, made several statements to the press, and did so without a disclaimer. Because he did not use a disclaimer, the complainant argued that the respondent’s statements were offered, or had the appearance of being offered, in his official capacity as a board member. As a result, the complainant submitted that the respondent violated N.J.S.A. 18A:12-24.1(c), N.J.S.A. 18A:12-24.1(d), N.J.S.A. 18A:12-24.1(e), N.J.S.A. 18A:12-24.1(g), and N.J.S.A. 18A:12-24.1(i).
Before analyzing the respondent’s purported violations of the School Ethics Act, the SEC made clear that a reasonable person would not believe that the respondent’s statements were made in his official capacity as a board member. Instead, the statements attributed to the respondent were nothing more than commentary on public information, not board business, and the substance of the respondent’s statements did not ascribe a position or statement to any person or entity other than to himself. With regard to the comments offered regarding the search for a new superintendent, the SEC determined that a reasonable person would view the respondent’s comments as being his personal view on the type of candidate who would be beneficial to the district.
Consequently, and because the respondent’s comments were not made in his official position as a board member; did not constitute a direct order to school personnel or involvement in activities or functions that are the responsibility of the administration, his statements “in this instance” did not have the potential to compromise the board; his statements did not disclose any confidential information; and there was no evidence that his statements resulted in harm to the superintendent, the complaint was dismissed for lack of probable cause.
Although the SEC dismissed the complaint, it did note that a board member’s participation in an interview with the press, without a disclaimer, is not advisable. Ultimately, and because the named respondent’s statements were not deemed to have been offered in his official capacity, the lack of a disclaimer was not critical.
Appeals
As of the date of this writing, it is unknown whether exceptions to the penalty recommended by the SEC, appeals of the SEC’s findings of a violation(s), or both have been filed in connection with C12-23. Regardless, the commissioner of education must now affirm, modify or reject the SEC’s decision within the time period prescribed by law.
SEC’s Next Meeting
The SEC’s regularly scheduled meeting on Feb. 20, 2024, has been cancelled. Instead, the SEC will hold special meetings on Feb. 13, 2024, and Feb. 20, 2024, with the former being limited to continued “interlocutory review.”
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.