By final decision dated Nov. 28, 2018, the School Ethics Commission substantiated charges against three Perth Amboy school board members who violated the School Board Member Code of Ethics, specifically N.J.S.A. 18A:12-24(c), when they voted to approve a settlement agreement that benefited the members personally. This provision prohibits board members from acting “in their official capacity in a matter in which they had personal involvement.”

In the case dating back to 2014, five board members were originally named in civil litigation brought by former Perth Amboy Superintendent Janine Caffrey.  At the board’s June 20, 2014 meeting, after two closed-session discussions seeking to approve a settlement in the civil litigation, an agreement was reached and read aloud as a resolution in public session by the board attorney.  The settlement ultimately resulted in a payment of $184,000 to Caffrey and the withdrawal of pending ethics charges filed by the former superintendent against the named board members.

Four of the board members participated in the closed-session discussions and voted to approve the settlement as well as the minutes at the following meeting.  The matter involving three of those four board members was heard before an administrative law judge who ultimately found:

  1. Respondents did not seek or receive legal advice from counsel about whether they could participate in the discussion and vote on the settlement agreement.
  2. Respondents knew of the doctrine of necessity and did not invoke it.
  3. Respondents were not new board members.
  4. Respondents twice discussed and twice voted on a matter with which they had an extremely close connection.

Notably, the administrative law judge declined to believe the respondents’ argument that they sought legal advice from the board attorney and were advised that it would be appropriate for the members to vote on the settlement agreement. The judge found no evidence to support the contention that legal advice was sought or given, and stressed that even if such legal advice had been given, it would not have changed his decision but may have only mitigated the penalty.

The judge upheld the charges against the three respondents and ordered a suspension of an unspecified length. The judge’s initial decision was upheld by the state ethics commission which imposed a 60-day suspension to be served in staggered succession to preserve the orderly operation of the board. The penalty portion of this decision is currently pending before the New Jersey Commissioner of Education for a final decision. Stay tuned for more information.

This case stresses the need for board members to consult legal counsel any time a question about a potential conflict of interest occurs. For more information about ethical and legal issues, please contact the NJSBA’s Legal and Labor Relations Department at (609) 278-5254.