In a recent decision, the New Jersey Commissioner of Education determined the School Ethics Commission’s (SEC) penalty recommendation against a board member was appropriate and censured the board member, reinforcing the concept that board members must use available administrative remedies if they are acting in opposition to prior administrative directives.

In this matter, a brief history is necessary. In 2013, in response to a board application, the commissioner withdrew the consent of the New Jersey Department of Education (NJDOE) to an out-of-state send-receive contract, allowing a five-year transition to a different district. Thereafter, an assistant commissioner advised the board and parents that any parent who continued to send their students to the former receiving district would be required to pay tuition to that district.

Subsequently, the board member attended a public meeting of the receiving district and in her capacity as a sending district board member, advised that the sending district was looking into taking “corrective” action and wanted to continue the sending-receiving relationship. Ethics charges were subsequently filed asserting multiple violations of the School Ethics Act. In response, the board member asserted that procedures to sever the relationship were not followed, and that the commissioner relied on incomplete or incorrect information in terminating the relationship.

Following an initial hearing where the SEC reversed several factual findings of the administrative law judge, the SEC decided that the board member exceeded the scope of her responsibility because when she relayed the above information to the receiving district, the board had not filed an appeal of the commissioner’s decision to terminate the sending-receiving relationship, nor had the board formally challenged the commissioner’s decisions.

The School Ethics Commission further noted that as board president, the board member was charged with safeguarding and protecting the interests of her board and had no obligation to quiet the contractual concerns of the receiving board, especially when her statements flouted previously issued commissioner decisions. Additionally, according to the decision, the fact that the board member may have had “permission” from fellow board members to make the statements did not absolve the board member of any unethical behavior. The ethics commission further explained that while the board member may have had the “full authority of the other board members” to attend the meeting, the board member did not have the authority to represent that the board was seeking “corrective action,” when it was not, or to indicate that the board wanted to continue a relationship specifically severed by the education commissioner.

In addition, the ethics commission found that as the parent of a child that would have attended the schools of the terminated sending-receiving relationship, the board member had a conflict of interest that required recusal. The ethics commission found a violation based on the board member’s vote on a board resolution authorizing parents to continue sending students to the receiving district, despite the education commissioner’s termination of that sending-receiving relationship.

The ethics commission found a second violation when the board member voted to approve a second resolution obligating the board to pay tuition for students who continued to attend those schools. Specifically, the violation was the vote to adopt a resolution obligating the school district to pay tuition at a school that was not approved by the education commissioner. According to the decision, the board member used her position to secure an unwarranted advantage for herself because she would not be required to pay tuition for her child’s continued attendance.

In assessing a penalty, the ethics commission noted, “[f]urthermore, when each member of the Board, including [the board member], voted to authorize sending …students …in blatant disregard of Commissioner’s decisions, and voted to authorize the Board to bear financial responsibility for this unauthorized attendance, each member of the Board deliberately disregarded Commissioner decisions.”  Except for the fact that the board member was no longer on the board at the time of the decision, the ethics commission would have recommended removal.

The education commissioner reinforced the SEC’s determination that the board member exceeded her authority under the School Ethics Act when she discussed various sending-receiving relationships with the receiving board, knowing that further litigation would most likely be necessary to resolve the matter. The education commissioner also adopted the penalty recommendation of censure because the board member received a benefit by virtue of not having to pay tuition for her child to attend the receiving district.

More information about this decision can be found here. For additional information, board members are encouraged to contact their board attorney, in compliance with board policy, or contact the Legal, Labor, and Policy Department of the New Jersey School Boards Association at (609) 278-5254.