In December, the School Ethics Commission found that a board member violated the School Ethics Act (SEA) in his public blog postings and recommended a six-month suspension. Last week, the New Jersey Commissioner of Education adopted the penalty recommendation and detailed the violation in a public opinion.

In petition C70-17, a tenured employee in the school district filed a complaint alleging that a board member violated the SEA by disparaging her, by name, in the board member’s personal but publicly accessible blog. At the initial hearing before the administrative law judge, testimony revealed that the complainant was a tenured teacher within the district, was a member of the teacher’s union, served as a union’s recording secretary for two years, and on the union’s negotiating committee for a year.

After the December 2016 board meeting, the teacher first learned that the board member (a board member-elect at the time) wrote a blog about the town because it was her initial appearance in that blog. The complaining teacher subsequently learned that she was included in the blog several times.

At the initial hearing, she testified that the blog “contained inaccurate or misleading information about contract negotiations (and the complainant’s salary), referenced (the) complainant in a negative manner, depicted a picture of the street where (the) complainant lives … questioned her qualifications for her teaching position, implied she received her position through patronage, questioned her salary and honesty, and referred to her as (a) … ‘union bully.’”

The teacher also testified that members of the community questioned her about the blog posts and whether she really obtained her job by patronage.

The judge found that the board member “inaccurately posted [the complainant’s] salary and grossly overstated it by over $20,000.”  …..   Further, the “board and [union] agree to teacher salaries after duly conducted negotiations,” and the respondent “was not a member of the negotiations committee yet acted in a manner unrelated to his duty to develop the general rules and principles that guide the management of the school district.”

In violation of N.J.S.A. 18A:12-24.1(c), the respondent’s post “contained gross misrepresentations, was meant to interfere with negotiations and ‘frame policies and plans’ before the ‘board has consulted those who will be affected by them,’” according to the ALJ.

With respect to the alleged violation of N.J.S.A. 18A:12-24.1(e), the administrative law judge found that the “(r)espondent, a sitting board member, repeatedly and deliberately attacked [the complainant], a teacher hired by the same board, through numerous blog posts.”  …..  Not only did he allege that (the) complainant was unqualified, and that she received her job through patronage, he also suggested, among other things, that the complainant did not “put children first.”

The judge found that the respondent’s “actions on the blog were beyond the scope of his duties as a board member, and private action of this kind may compromise the board.”  ….“[i]t is evident that a board member smearing and verbally attacking a teacher in a publicly accessible forum diminishes the integrity of the board,” and “[t]he aggressive and intense nature of the posts may clearly have ‘intimidated the public from coming forward and addressing the board.’”

As for the board member’s rights to free speech, the judge noted that the commission previously advised that while a board member does not “surrender the rights that they have as citizens such as freedom of speech when they become members of a school board,” they must still comply with the School Ethics Act.

In this matter, the judge held that while the board member claimed to be writing as a private citizen and used a disclaimer, “it also indisputably represents him as a board member.”  Therefore, and because the board member referenced, on several occasions, his status as a board member, the judge found that it was not convincing that the board member was speaking “strictly as a private citizen,” as demonstrated by his identifying himself as a board member in at least two blogs.

Upon review, the SEC adopted the judge’s penalty recommendation of a six-month suspension. The Commissioner of Education, who has authority to review penalty recommendations of the SEC, but not factual findings, reviewed the board member’s case and rejected his arguments of hearsay and First Amendment expression.

Although the education commissioner said the board member’s blog posts merited a six-month suspension, the board member lost his re-election bid in November and left the board following the board’s January 2020 reorganization meeting.