On Dec. 21, 2023, the Appellate Division issued an unpublished opinion in connection with I/M/O Marilyn Roman and Sudhan Thomas, Jersey City BOE, which discusses the “advice of counsel” defense in ethics cases.  David B. Rubin represented the named defendants, and Carl Tanksley Jr., general counsel for the New Jersey School Boards Association, submitted an amicus curae brief in support.

By way of brief background, Marcia Lyles (the then superintendent of Jersey City Public Schools) filed a federal lawsuit against the district’s board of education and several individual defendants, including Marilyn Roman and Sudhan Thomas, alleging hostile work environment and tortious interference of contract (among other claims). Roman and Thomas were indemnified in connection with the lawsuit and provided with counsel. The matter was eventually settled, and Roman and Thomas individually signed the settlement agreement. Several days later, the board, including Roman and Thomas, voted to approve the settlement agreement. Of note, pursuant to the terms of the settlement agreement, Lyles agreed not to sue Roman or Thomas, and agreed to release them from any and all claims or actions she could bring against them in the future.

Approximately eight months later, an ethics complaint was filed against Roman and Thomas alleging that they violated N.J.S.A. 18A:12-24.1(e) when they signed the settlement agreement, and violated N.J.S.A. 18A:12-24(c) when they voted to approve the settlement agreement.

In an initial decision, an administrative law judge found that Roman and Thomas did not violate N.J.S.A. 18A:12-24.1(e) but did violate N.J.S.A. 18A:12-24(c) when they voted to approve the settlement agreement. As a result, the administrative law judge recommended a penalty of reprimand. The School Ethics Commission adopted the administrative law judge’s legal conclusions and recommended penalty, and the commissioner of education affirmed the SEC’s decision.

On appeal to the Appellate Division, the court considered whether the commissioner of education erroneously expanded the meaning of N.J.S.A. 18A:12-24(c) by finding that the named respondents committed a violation, and whether the commissioner erroneously rejected the named respondents’ advice of counsel defense.

As to the violation of N.J.S.A. 18A:12-24(c), the Appellate Division concurred that Roman and Thomas “had a statutory conflict of interest under N.J.S.A. 18A:12-24(c), and that their vote on the settlement agreement was prohibited. Per the Appellate Division, Roman and Thomas “derived a benefit from settling the actions, which released them from all claims and terminated their personal involvement,” and there is “no reason to disturb the Commissioner’s finding that under the plain language of N.J.S.A. 18A:12-24(c), [Roman and Thomas] acted in their official capacities on a matter where they had ‘a personal involvement that . . . create[d] some benefit.’”

However, the Appellate Division found that the commissioner of education failed to fully consider the four prerequisite factors to an advice of counsel defense regarding an agency’s decision on an ethical violation. Those prerequisites include:

  • “[t]hat the approval or advice was received prior to the action being taken;”
  • “[t]hat the individual who offered the advice or approval relied upon possessed authority or responsibility with regard to ethical issues;”
  • “[t]hat the individual seeking advice or approval made a full disclosure of all pertinent facts and circumstances;” and
  • “[t]hat the individual compl[ied] with the advice received, including any restrictions it might contain.”

According to the Appellate Division, Roman and Thomas “squarely demonstrated all four prerequisites to avail of an advice of counsel defense.” As a result, the Appellate Division reversed the imposition of the penalty of reprimand and directed the commissioner to vacate the penalty.

What are the implications to board members of this decision? If all four factors of the “advice of counsel” defense can be met, a board member may be able to avoid the imposition of a penalty for violating the School Ethics Act, but a violation of the School Ethics Act can still be found. The “advice of counsel” defense is extremely fact-sensitive, and in order for it to apply, all factors must be satisfied.

As a reminder, this decision is unpublished and, therefore, does not constitute binding legal precedent. Unpublished decisions are not generally cited or relied upon to support arguments in future cases.