At its regularly scheduled meeting Nov. 28, 2023, the School Ethics Commission took action as follows: discussed one ethics complaint pursuant to the SEC’s previous regulations; reviewed three ethics complaints pursuant to the SEC’s new/amended regulations; issued orders to show cause for those board of education members who failed to complete mandatory training by Dec. 31, 2022; adopted 10 decisions for previously discussed ethics complaints; adopted a decision for a holdover matter for a returning school official who did not file their 2023 Personal/Relative and Financial Disclosure Statements by April 30, 2023; and adopted, and made public, a new advisory opinion. Of the 10 decisions adopted by the SEC, only five were posted on the SEC’s website; therefore, the other five matters remain pending. This article is limited to a review of those matters dismissed by the SEC at its meeting.
Dismissals Due to Lack of Probable Cause
C05-23: Following the adoption of a Decision on Motion to Dismiss on July 25, 2023, and the filing of an answer on Aug. 14, 2023, the SEC considered whether there was probable cause to support the remaining allegations in an ethics complaint filed against a superintendent. In the remining count of the ethics complaint, it was contended that the superintendent violated N.J.S.A. 18A:12-24(b) because, on “various dates in September and October 2022,” he sent the complainant a spreadsheet, and “pressured” the complainant to fill in the names of other superintendents who could attend the superintendent’s “personal … consulting dinner.”
In determining that the complainant failed to provide sufficient facts to support a finding of probable cause, the SEC stated that, even if the superintendent created a spreadsheet and/or asked the complainant to populate the spreadsheet with the names of superintendents who could attend his “personal … consulting dinner,” conduct which the respondent denied, “there are insufficient facts alleged to establish that this, in and of itself, secured, or was an attempt to secure, an unwarranted privilege, advantage or employment for Respondent.” More specifically, the complainant failed to allege with “specificity” what the superintendent “intended to do with the list of superintendents, or how obtaining the names of superintendents (which are publicly available information) resulted in an unwarranted benefit to Respondent, his immediate family, or others.” As a result, the complaint was dismissed for lack of probable cause.
C34-23: The SEC similarly considered whether there were sufficient facts and circumstances pled in a five-count ethics complaint to lead a reasonable person to believe that the School Ethics Act was violated. Because this matter was filed after March 6, 2023, the named respondent did not have the opportunity to file a motion to dismiss and, instead, could only file a written statement in response to the ethics complaint.
In Count 1, the respondent allegedly violated N.J.S.A. 18A:12-24.1(a), (c), (e) and (i) when he replied to a post on social media (made by another board member and the board member’s running mate in the upcoming election) which criticized, among other things, their “priorities” and their voting record while on the board. However, the board member’s running mate was not a board member and, therefore, had no demonstrable priorities or voting record. In Count 2, the respondent purportedly violated N.J.S.A. 18A:12-24.1(a) because he voted against the approval of the “required remote school policy, which was a State requirement.” In Count 3, the respondent allegedly violated N.J.S.A. 18A:12-24.1(g) and (i) based on the substance of certain statements made at a public board meeting, and because he had “two outbursts.” More specifically, in discussing an email from a community member (about badges/lanyards), he stated that the wearing of the badges/lanyards could “end up going someplace it shouldn’t … like a relationship between [the staff and a student].” In addition, the respondent yelled at other board members, threw his papers, and walked off the dais. At one point, he said to another board member, “I can’t listen to anything that comes out of your mouth.”
In Count 4, the respondent purportedly violated N.J.S.A. 18A:12-24.1(g) and (i) when, at the next month’s board meeting, the respondent denied he said that the badges/lanyards could lead to a relationship, and also disparaged the superintendent’s reputation and credibility when he told him to consider resigning. Finally, in Count 5, the respondent allegedly violated N.J.S.A. 18A:12-24.1(c), (e), (g) and (i) when, in a post on the community’s and residents’ social media page, the respondent supported several candidates for the board, and attacked the integrity of current board members and the administration. In particular, the respondent’s post stated, “Our Board of Education is not operating the way it was intended to. … The Board of Ed should be representing the community but they currently serve the administration’s every wish. Years of leadership by our board compounded with a lack of accountability from our administrators has led to a bloated administration that operates unchecked with no system of checks and balances ….”
The SEC did not find probable cause for any of the stated violations of the School Ethics Act. Regarding Count 1 and Count 5, both of which relate to social media posts/comments, the SEC emphasized that “Respondent used a disclaimer on his post, in all capital letters so that it would be conspicuous, indicating that the statements were made in his capacity as a private citizen and not as a [b]oard member, and also indicated that the views are not representative of the [b]oard or its members.” As a result, the respondent’s “dissatisfaction with how he believes the [b]oard is operating” (Count 5) and “criticisms of the [s]uperintendent as part of a campaign” (Count 5) could not violate the School Ethics Act because the comments were made “in his capacity as a private citizen.” With regard to Count 2, the SEC reiterated that board members “are permitted to vote in accordance with their own opinions and are not required to vote in a certain way, regardless of the issue.”
Regarding Count 3, the SEC found that there was no indication that the information shared with the public was confidential, and “Respondent’s alleged statements about the lanyards are opinion statements expressing his viewpoint, not inaccurate factual statements.” In addition, even if the respondent became frustrated and made a curt remark to fellow board members at a public meeting, same is not action that “undermines, opposes or compromises school personnel in the proper performance of their duties.” Finally, and with regard to Count 4, “Respondent’s comment that the [s]uperintendent should consider resigning did not undermine, compromise, or harm the [s]uperintendent in the performance of his duties,” as the facts “demonstrate that it was part of a back-and-forth exchange in which both individuals made quips directed at the other.”
Settlement
In C44-21, the SEC adopted an Initial Decision (Settlement) as its Final Decision (Settlement). Although the Final Decision (Settlement) does not detail the facts pled by the complainants in support of their ethics complaint, the decision indicates that their ethics complaint asserted violations of N.J.S.A. 18A:12-24.1(a), 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(f), N.J.S.A. 18A:12-24.1(g), and N.J.S.A. 18A:12-24.1(j). Nonetheless, and while the matter was pending at the Office of Administrative Law, the parties agreed, among other things, that no one (neither the complainants nor the respondent) engaged in any wrongdoing; that the SEC should dismiss the alleged violations of the Code of Ethics for School Board Members filed against the respondent; and that “there shall be no penalty or other remedy imposed.” Given the parties’ agreement, the SEC agreed that a dismissal was appropriate.
SEC’s Next Meeting
The SEC had a regularly scheduled meeting on Tuesday, Dec. 19, 2023. In a future article, we will discuss the decisions adopted by the SEC at that meeting, and how they impact school officials.
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.