Following the cancellation of its Feb. 20, 2024, meeting, the School Ethics Commission held a special meeting Feb. 27, 2024, and took the following action: discussed three ethics complaints pursuant to its previous regulations and four ethics complaints pursuant to new/amended regulations; adopted seven decisions in connection with previously discussed ethics complaints; considered a new advisory opinion request (A04-24), and reconsidered a previously issued advisory opinion (A02-24); and also considered making six advisory opinions public (A15-23, A16-23, A01-24, A02-24, A03-24, and A04-24).

Of the seven decisions adopted by the SEC, five were posted on the SEC’s website; therefore, the remaining two matters (C10-23 and C45-23) remain pending. In addition, none of the six advisory opinions that the SEC considered making public have been posted on the SEC’s website. As noted in a previous article, this is either attributable to the fact that 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 (six).

This article is limited to a discussion of those matters that were dismissed by the SEC at its special meeting on Feb. 27, 2024. You can review the actions it took in the cases that were not dismissed by referring to last week’s article in School Board Notes.

Posted Decisions: Dismissals

Following its decision to withdraw a previously issued probable cause notice, the SEC adopted a decision dismissing C62-20. The decision issued by the SEC only contains the procedural history for the case and does not detail the factual basis for the violations of the School Ethics Act.

In addition, two probable cause review decisions were also adopted by the SEC at its Feb. 27 meeting. Per the SEC’s amended regulation, “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.” N.J.A.C. 6A:28-9.7(a).

In C39-23, the named respondent posted statements on his Facebook page that questioned the need to offer the “rookie” superintendent a new contract. Included under the post were comments in which the respondent stated that approval of the contract was a “disgrace imo” and “in due time we will swing the pendulum back. We need a few more good parents up there with us.” The complainant asserted that the respondent’s social media posts violated N.J.S.A. 18A:12-24.1(g) because the information disclosed by the respondent was confidential, and additionally violated N.J.S.A. 18A:12-24.1(i) because the posts and comments needlessly injured the superintendent.

In finding insufficient facts and circumstances to support a finding(s) of probable cause, the SEC indicated that the complainant failed to specify what information in the respondent’s social media post was confidential, and that the board’s consideration of a new contract for the superintendent was public information. In addition, there was no evidence that the superintendent was harmed in any way as the board approved her new contract, and the social media post did not prevent the superintendent from performing the essential functions of her job.

In C41-23, the nonconflicted members of the board voted, at its meeting on Nov. 22, 2022, to select the director of human resources to serve as its acting superintendent. On Dec. 2, 2022, the executive county superintendent approved the proposed form of employment contract for the acting superintendent and, according to the complainant, it included a stipend that had not been previously discussed with and/or disclosed to the nonconflicted members of the board. Nonetheless, on Dec. 20, 2022, the nonconflicted members of the board, including the complainant, voted to appoint the director of human resources as acting superintendent, and additionally approved his employment contract (including the stipend).  Because the nonconflicted members of the board did not learn about the stipend until after the acting superintendent’s contract was approved by the executive county superintendent, the complainant argued that the named respondent, who was charged with negotiating the terms of the contract because of the board president’s conflict of interest, violated N.J.S.A. 18A:12-24.1(a), N.J.S.A. 18A:12-24.1(d), and N.J.S.A. 18A:12-24.1(e).

According to the SEC, because the complainant did not provide a copy of a final decision from any court of law or other administrative agency demonstrating or specifically finding that the respondent violated a specific law, rule, or regulation when she engaged in any of the acts/conduct set forth in the complaint; because the respondent’s communications with board counsel were not inappropriate as she was tasked with negotiating the details of the acting superintendent’s contract, and her communications did not contain a direct order to “personnel” (which does not include board counsel); and because the respondent’s efforts to negotiate the acting superintendent’s contract were part of her duties as acting board president, the SEC dismissed the complaint for lack of probable cause. The SEC additionally noted that if, as contended, the complainant disagreed with the inclusion of the stipend in the employment contract, there was an opportunity to vote against it and to renegotiate its terms.

The SEC’s Next Meeting

The SEC’s next meeting is scheduled for March 26, 2024.

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.