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At its regularly scheduled meeting on May 21, 2024, the School Ethics Commission took the following action: discussed two ethics complaints pursuant to the SEC’s previous regulations; discussed six ethics complaints pursuant to the SEC’s new/amended regulations; adopted eight probable cause review decisions; considered one new advisory opinion request (A07-24); and considered making eight advisory opinions public (A01-24 through A07-24, and A09-24).

Of the eight probable cause review decisions adopted by the SEC, four were posted on the SEC’s website; therefore, the other four matters (C82-23, C86-23, C89-23, and C90-23) remain pending. Once again, none of the eight advisory opinions that the SEC considered making public are posted on the SEC’s website, which is either because the SEC did not have the required number of members present to make the opinions public (six), or because the SEC did not have a sufficient number of affirmative votes to make the advisory opinions public (also six).

Probable Cause Review Decisions

As set forth in N.J.A.C. 6A:28-9.7(a), “Probable cause shall be found when the facts and circumstances presented in the complaint and written statement would lead a reasonable person to believe that the [School Ethics Act] has been violated.” Applying this standard, and as further discussed below, the SEC found that the facts and circumstances set forth in C62-23, C79-23, C81-23, and C84-23 were insufficient to warrant a finding of probable cause and, therefore, the matters were dismissed.

In C62-23, the complainant argued that the named respondent, the superintendent, violated  N.J.S.A. 18A:12-24(c) and N.J.S.A. 18A:12-24(f) because he “allowed” a district supervisor to utilize his “position in public office” to charge district students for their enrollment in a summer class/course that is required for graduation, and “allowed” the same district supervisor to use district resources and facilities to “line his own pocket” and to benefit, financially, from the enrollment of students in the summer class/course.

In the SEC’s review, the complainant failed to demonstrate that the respondent had a financial and/or personal involvement in the course offering; the respondent sought personal financial gain for herself or a member of her family in connection with the class/course; and/or the respondent, or a family member, profited in any way from the district offering the optional summer class/course. In addition, and based on the record, the fee offered for the optional summer class/course, which was also offered to students during the school year, was required by the district and approved by the board and was not required or approved by the respondent or any other district employee. Although requested by the named respondent, the SEC declined to find that the complaint was frivolous and/or that sanctions should be imposed.

In C79-23, the SEC dismissed Counts 1-2 as untimely. In the remaining counts of the complaint, the complainant asserted: Respondent violated N.J.S.A. 18A:12-24.1(d), N.J.S.A. 18A:12-24.1(e), and N.J.S.A. 18A:12-24.1(f) when he delayed approving field trips for three months because he believed the eighth-grade trip to the Jewish Heritage Museum should also include a trip to the 9/11 Memorial and Museum (count 3); violated N.J.S.A. 18A:12-24.1(c), N.J.S.A. 18A:12-24.1(e), and N.J.S.A. 18A:12-24.1(f) when he offered his support for candidates running for the board on his personal Facebook page, without a disclaimer, and when he called a member of a different board of education “the face of pornography in our high schools” because that board member did not agree with the respondent’s opinion regarding banning a book (count 4); and violated N.J.S.A. 18A:12-24.1(c), N.J.S.A. 18A:12-24.1(d), N.J.S.A. 18A:12-24.1(e), and N.J.S.A. 18A:12-24.1(f) when he “scolded the public” at a board meeting “for discussing book banning and staff turnover on social media,” and using “talking points about book banning, verbatim of the nationally recognized extremist group, Moms For Liberty” (count 5).

With regard to count 3, the SEC found that the respondent, as a board member, is entitled to discuss matters that are before the board, to express his opinion, and/or to make suggestions, and including when approving a proposed field trip. Regarding count 4, although a disclaimer is recommended, a reasonable member of the public could not perceive that the respondent’s statements were made in his official capacity as a board member. Not only did the respondent use his personal Facebook page (which did not reference his position on the board), but the context of his statements made it clear that he was expressing his personal opinion and personally supporting certain candidates. As for count 5, the SEC indicated that the “public session of a [b]oard meeting is the appropriate place for Respondent to address his opinion on topics including the appropriateness of books in schools and staff turnover, and therefore, is not an ethical violation.” The fact that the respondent’s opinions may be similar to that of special interest groups does not, without more evidence, prove that he engaged in unethical conduct.

In C81-23, the complainant claimed that the named respondent, a board member, violated N.J.S.A. 18A:12-24.1(e) because she endorsed three different candidates for election to their respective boards of education on multiple occasions, and for several weeks, and never used the “required disclaimer” on any of her social media posts. Each count of the three-count complaint concerned the social media endorsements offered by the respondent in support of each candidate.

While the SEC stated that “a disclaimer would have removed any question as to what capacity” the respondent was speaking in, it also found that, based on the substance of her social media posts (“I am happy to support my friend”; “My friend and neighbor…”; and “the candidates I support”), “a reasonable member of the public would not perceive the social media endorsements of candidates for election to the [b]oard, as well as the endorsement of one candidate for another board of education, were made in the respondent’s capacity as a [b]oard member.” The SEC also emphasized that all of the respondent’s posts were made on “her personal Facebook and Twitter accounts, as well as on a page dedicated to her campaign.”

In count 1 of the matter docketed as C84-23, the complainant stated that after receiving an award for her support of “parental rights” from a county political group that encouraged all boards of education to abolish a policy “which provides protections for transgender students,” the respondent (a board member) began taking board action which, ultimately, led to the board abolishing its own policy. Because the respondent’s board actions were preceded by her receipt of an award from a county political group that applauded her support of “parental rights,” the complainant alleged that the respondent violated N.J.S.A. 18A:12-24(e), N.J.S.A. 18A:12-24.1(a), N.J.S.A. 18A:12-24.1(c), and N.J.S.A. 18A:12-24.1(f).  In counts 2-3, the complainant contended that the respondent violated N.J.S.A. 18A:12-24.1(g) because, on two different dates, she posted “non factual” and “privileged” comments/information about the transgender policy on social media, and did not include a disclaimer.

After review, and regarding count 1, the SEC found that the complainant did not provide factual evidence that the respondent’s receipt of the award was conditioned or based upon any understanding that she would then, in turn, abolish the transgender policy in question, or that any of her actions were taken at the request of any political group or organization.

With regard to counts 2-3, although the SEC agreed that there was a nexus between the respondent’s social media posts and her board membership because she discussed the business and operations of the board, the SEC determined that the complainant failed to provide evidence that the respondent’s social media posts were inaccurate, other than being a reasonable mistake or personal opinion, or were not attributable to developing circumstances, and also failed to specify which part of the posts, if any, were confidential. Finally, despite a request from the named respondent, the SEC did not find that the complaint was frivolous and/or that sanctions should be imposed.

SEC’s Next Meeting

The SEC will next convene for a special meeting June 17, 2024. The regularly scheduled meeting previously slated for June 25, 2024, has been cancelled.

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.