In a recent decision, the School Ethics Commission determined that a board member violated the Code of Ethics when he inadvertently copied a parent who was also an employee in the district on a confidential email.
On May 19, 2020, the SEC determined in C09-19 that a board member violated N.J.S.A. 18A:12-24.1(g), which says in part, “I will hold confidential all matters pertaining to the schools which, if disclosed, would needlessly injure individuals or the schools.” The SEC determined that the board member violated the statute when he “replied all” on an email that included not only the board but also the parent who brought a complaint to the board.
The dispute began when there was a shooting at a workplace in the town in which the district was located. Upon the advice of the police, the school district issued a shelter in place order for some of the district schools closest to the incident, but not for those schools furthest from the incident. A parent, who was also a teacher in the district, called the elementary school that her child attended to complain. Shortly thereafter, the superintendent of the district visited the teacher to express his disappointment in her decision to complain about the fact that the schools were not locked down as a result of the active shooter incident.
The parent/teacher sent a letter to the board to complain about being singled out by the superintendent and about the decision to not lock down all of the schools. The board president sent an email to the parent indicating that the email was received and the board would review it.
The board reviewed the complaint and determined to uphold the decision of the administration. The parent/teacher responded by disagreeing with the board’s decision, particularly what the parent/teacher viewed as the superintendent’s intimidating behavior in going to the teacher’s classroom to express his disappointment that the teacher complained about the lack of a lockdown. The board president replied to the parent/teacher by thanking her for the second email and copied the entire board.
An individual board member then responded to the board president’s reply to the parent/teacher, which became the subject of the ethics complaint. In responding to the board president, the individual board member “replied all,” inadvertently including the parent/teacher in his response, when he only intended it to go to his fellow board members. In this email, he expressed his opinion that the board did not adequately address the parent/teacher’s concerns and that the complaint had not been taken seriously.
In finding that the individual board member violated his duty of confidentiality, the SEC reasoned that by subsequently offering his opinion on the substance of the communications submitted by the teacher/parent, including how the board was handling the issue, the board member disclosed confidential information. The message initially communicated to the teacher/parent by the board president indicated that the board was supportive of the superintendent’s decision. However, the information in the individual board member’s email revealed that at least one member of the board may have felt otherwise.
The SEC decision noted, “The opinions of individual Board members are part and parcel of the Board’s overall deliberative process, and the fact that they did not necessarily occur in Executive Session does not mean they are not confidential. The information shared by Respondent could have caused [the parent/teacher] to believe that the Board might change its mind.” As a result, the SEC determined that a violation of N.J.S.A. 18A:12-24.1(g) had occurred.
Having found that the board member violated the ethics code, the SEC discussed what the appropriate penalty was for the violation. The SEC looked to one of its earlier decisions concerning the use of email by board members. In C17-18, from May 2019, a board member had intentionally shared an email about a student disciplinary matter for which the SEC had determined that the appropriate penalty was censure (a resolution of disapproval read publicly at a school board meeting). In this case, because the breach of confidentiality was inadvertent, the SEC determined that the appropriate penalty was reprimand (letter of admonishment).
In determining the penalty of reprimand, the SEC said, “All members of a board of education, including Respondent, must always be mindful of who is receiving their emails. The inclusion of any member of the public on the same email as the Board (as an entity) has the potential to violate, among other things, the Open Public Meetings Act, to waive confidentiality of the Board’s business, and, as in this case, to result in the disclosure of confidential information.”
For more information on this decision, please contact your district’s board attorney or the NJSBA Legal and Labor Relations Department at (609) 278-5254.