In a recent decision, Lowell v. Smallwood et al., New Jersey’s second highest court, the Appellate Division of the Superior Court, upheld a School Ethics Commission (SEC) determination that two board members violated the School Ethics Act when they conducted a site visit to assess a potential administrator candidate without board approval.

Specifically, the SEC had determined that the two board members “took board action beyond the scope of their authority and in violation of N.J.S.A. 18A:12-24.1(c) when, without Board authority, they conducted a site visit to assess a candidate for assistant superintendent,” a vacant position within the district. Upon review, the Commissioner of Education issued a penalty of censure against the board members.

In the initial decision, the SEC determined that the board members “violated N.J.S.A. 18A:12-24.1(e) when they made personal promises to the applicant by advancing the possibility of his employment with the District.” In addressing this violation, the commission found that the site visit had the potential to compromise the board because it implied the board members were acting on behalf of the board when there was, in fact, no authorization for a site visit.

One of the two accused board members challenged the ruling to the Appellate Division, arguing that there was insufficient evidence to support a finding that a violation had occurred. In essence, the board member argued that the initial decision relied on hearsay evidence and was not supported by a “residuum of legal and competent evidence.”

The residuum rule stems from a 1916 New York case which indicates that although an administrative agency is not subject to all the rules of a court, and hearsay evidence is admissible, any ultimate determination must be supported by evidence that is admissible before a jury at trial. The residuum rule was re-affirmed in 2013 by the New Jersey Supreme Court in Ruroede v. Borough of Hasbrouck Heights. 

On appeal, an important factor in the court’s analysis was the fact that neither of the responding board members elected to testify during the initial SEC hearing. Accordingly, the court determined that both the testimony and documents offered into evidence were “uncontested,” and therefore the court determined the SEC did not exceed its discretion in concluding the two board members conducted the site visit without board authority.

In applying the residuum rule to the present case, the court explained that the ultimate finding was supported by sufficient credible evidence in the record. That evidence, according to the court, consisted of testimony by the petitioner that the two board members attended a site visit without board approval; along with email correspondence and the respondent’s own answer to the petition acknowledging that a site visit did occur. It should be noted that while the evidence relied upon by the court could be characterized by some as slim, that evidence was not contested by the board member, as such it was accepted by both the SEC and the court. As a result, the Appellate Division upheld the penalty of censure that was imposed by the Commissioner of Education.

Board members, acting outside the confines of a board meeting, should be sure that they have express authority from the board to engage in those actions. In addition, in the unlikely event that board members find themselves facing ethics charges, they should understand that hearsay evidence is admissible in a hearing before the School Ethics Commission and that any evidence that is uncontested, even hearsay evidence, may be deemed admitted and used in that proceeding.

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