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Last week, the New Jersey Appellate Division affirmed the commissioner of education’s decision that a board member violated the School Ethics Act, N.J.S.A. 18A:12-21 et seq. when he filed a petition with the commissioner without approval by the whole board.

The case related to an earlier Appellate Division decision that was highlighted in the July 24, 2018, edition of School Board Notes. Both cases centered on a complaint filed by a board member against the board president and the board attorney regarding the renewal of the superintendent’s contract. The prior case focused onN.J.S.A. 18A:17-20.1, which provides for the automatic renewal of a superintendent’s contract unless (1) the superintendent is reappointed to a different term between three to five years in length; or (2) provides written notice of nonrenewal, with the timing of such notice to be provided pursuant to a specified formula.

However, the superintendent’s contract stated that the contract would renew only if the board provided notice of renewal (otherwise it would not renew). In its 2018 decision, the Appellate Division found that despite the contractual language, the board would have had to provide notice of nonrenewal as per the statutory formula before the expiration of the contract in order for the contract not to be renewed. Because the board did not provide this notice, the contract automatically renewed under the statute.

Relatedly, a private citizen filed a complaint with the SEC alleging that the board member violated provisions of the SEA when he filed the aforementioned petition with the commissioner with complaints against the board’s president and its counsel, which alleged the noncompliance with the law by not voting on the contract renewal. An administrative law judge found that the board member had not been instructed or advised to file his petition and that there was no formal vote by the board to authorize him to send the petition. The administrative law judge noted that he could have requested an advisory opinion from the SEC, pursuant to N.J.S.A. 18A:12-31, to understand if filing the petition would violate the SEA.

The board member was found to have violated N.J.S.A. 18A:12-24(g), which, among other things, prohibits a board member from “represent[ing] any person or party other than the school board or school district in connection with any cause, proceeding, application or other matter pending before the school district in which he serves or in any proceeding involving the school district in which he serves . . . .” A violation of N.J.S.A. 18A:12-24.1(e) was also found because the allegations could jeopardize public trust in the board and “interfered with the [Board’s] discharge of its duties.”

Notably, the administrative law judge found that the conduct was not “overtly unethical or conflicted,” but that the board member’s action was a “technical or ‘per se’ violation” of the SEA. The recommended penalty was a reprimand. The SEC adopted the administrative law judge’s findings but increased the penalty to a censure. The commissioner issued a final decision upholding the SEC’s decision but lowered the penalty back to a reprimand.

The board member then appealed to the Appellate Division, arguing that the prior administrative decisions improperly found “technical” violations of the SEA. Further, he contended that the conclusions are against the “intent and purpose” of the SEA, which is “to prevent actual conflict and self-dealing.” The commissioner’s counterargument was that the plain language of the SEA does not require any intent. In other words, a board member need not intend to violate the SEA to actually violate it.

In an unpublished decision, the Appellate Division agreed with the commissioner and affirmed the commissioner’s decision. The court addressed the tension between language in different sections of the SEA, specifically N.J.S.A. 18A:12-24(g) (described above) and N.J.S.A. 18A:12-24(j), which states: “Nothing shall prohibit any school official, or members of his immediate family, from representing himself, or themselves, in negotiations or proceedings concerning his, or their, own interests . . . .”

The court found that the board member’s actions do not fit into N.J.S.A. 18A:12-24(j) because he was not representing himself in pursuit of his own interests but rather trying to represent the policy interests of a minority of the board to override the majority.

The decision can be found here. For more information about the decisions discussed in this article as well as complying with the SEA more generally, board members should consult with their board attorney or call the NJSBA Legal and Labor Relations Department at 609-278-5279.