A Review of Recent Decisions from the School Ethics Commission 

The beginning of a new school year is a good time for board members to reexamine their understanding of the standards set forth in the School Ethics Act. An unwavering commitment to these standards helps boards of education to focus on their primary duty, which is to ensure that all students are successful and thrive in the pursuit for excellence in education. 

In the past several months, the School Ethics Commission has adopted a number of decisions finding violations of the act, and it has recommended penalties for those board members who failed to adhere to their prescribed ethical mandates. The SEC has also voted to make several advisory opinions public with the hope that board members will have greater clarity about the kind of conduct that could lead to violations of the act. A summary of the most topical complaints and advisory opinions is summarized here to guide board members in avoiding potential violations of the act.  

Complaints

Promoting a Personal Business in District. In C75-18, the SEC adopted a final decision, finding that a board member violated N.J.S.A. 18A:12-24(a), N.J.S.A. 18A:12-24(c), and N.J.S.A. 18A:12-24(d) when they used their district email account to promote their personal business to district families; when, in their capacity as board president, they authorized a flyer to be posted on the board’s website that advertised and endorsed the board member’s personal business; when, following communications/a request from the board member, various parent-teacher organizations then posted information regarding events to be hosted by the board member’s personal business; and when they, in attempting to resolve a complaint from a community member, used their district email account to solicit a meeting with the community member during a time when the board member would be working with students and families as part of his personal business. Although the SEC found that the board member “deliberately and intentionally” used their position on the board to benefit financially, the SEC was constrained to recommending a penalty of reprimand because the board member was no longer on the board. 

Voting on Matters Related to Employer. In C81-20, the SEC adopted a final decision finding that a board member violated N.J.S.A. 18A:12-24(c) when they voted in the affirmative to approve an agreement/contract between the board and their employer.  According to the SEC, and based on the decision in a similar matter (C10-16 and C11-16), the board member’s “affirmative vote, in and of itself, constituted action in [their] official capacity in a matter where [they], or a member of [their] immediate family, had a direct or indirect financial involvement that might reasonably be expected to impair [their] objectivity (N.J.S.A. 18A:12-24(c)).” Based on the board’s member violation, the SEC recommended a penalty of reprimand. 

Communication Compromising the Board. In C88-21, the SEC adopted a final decision finding that a board member violated N.J.S.A. 18A:12-24.1(e) when they sent an email from their district email account to members of the Legislature and to a member of the public expressing their personal views about the mask mandate, and encouraging action from the Legislature and others. According to the SEC, the board member’s personal views could reasonably be interpreted as being endorsed by the board and had the potential to compromise the board because they seemed to support a call to action against the mask mandate in schools. In light of the fact that the mask mandate was a divisive issue statewide, and because the violation was the board member’s first offense, the SEC recommended a penalty of reprimand. 

Based on the SEC’s decision, board members are cautioned not to use their district email account to express their personal opinion on a matter to external stakeholders. If they do, the communication can be viewed as being offered in their official capacity as a board member and/or as the position of the board on the issue. Furthermore, depending on the substance of the communication, the communication could expose the board member to potential liability under the act. 

Voting on Matters Related to Superintendent While Spouse Working in the District. In C80-22, the SEC found, by summary decision, that a board member violated N.J.S.A. 18A:12-24(c) when they voted to approve a new employment contract for the superintendent at a time when their spouse was actively employed in the district. Although the board member acknowledged that their vote was improper due to their spouse’s employment, the board member maintained that the vote was inadvertent; expressed regret for their action; noted that they abstained on another agenda item regarding their spouse; and the board revoted on the matter to cure the oversight. Based on the mitigating factors present, the SEC recommended a penalty of reprimand for the board member’s violation, and their “sheer inadvertence.”  

Social Media and Disclaimers. In C103-22, the SEC dismissed a complaint that was filed against a board member alleging that they violated the act based on the content of their social media post regarding the upcoming election. Of importance, the SEC clarified that just as the inclusion of a disclaimer is not dispositive, neither is its omission. Instead, whether a board member’s social media activity may violate the act will always depend on whether, based on the substance of the speech, a reasonable member of the public could perceive that the board member is speaking in their official capacity as a board member. If social media activity cannot be viewed as being offered in an official capacity, or on behalf of the board, then a disclaimer is not required. However, if a reasonable member of the public could perceive that social media activity is offered in an official capacity or pursuant to their official duties, a violation(s) of the act may be established. In this way, the SEC reiterated that board members must always consider the public lens through which their social media activity will be viewed, and consider whether, despite their intention, it might be viewed as being offered in an official capacity.

Use of Campaign Social Media Accounts In C19-22 and C20-22, two separate but related matters, the named respondents used their “personal” social media accounts to campaign for seats on the board and then, following their successful bid for election, continued to use the same social media accounts to post or share information, and did so without use of a disclaimer.  In C19-22, the respondent posted negative comments about the governor (and about masking in schools during COVID-19), and encouraged teachers to opt-out of the New Jersey Education Association. Not only did the statements cause the board to adopt a resolution disavowing the statements, they also led to the filing of an unfair practice charge against the board. In C20-22, the respondent, in various posts over the span of several months: encouraged “staff members of the local union to form new unions” and, as in C19-22, the comments led to the filing of an unfair practice charge; “equated the treatment of unvaccinated individuals to the illegal discrimination experienced by Jewish people”; publicly opposed mandatory COVID-19 vaccines and masking, and “encouraged students to defy them”; and expressed her “disagreement with how gender identity is taught in the State.”

Despite an administrative law judge concluding that members of the public “could” view the comments/posts from the named respondents as those of the board – particularly because the social media accounts lacked a disclaimer, and were made on the same social media accounts that the named respondents had used to run for the board – and findings that the social media posts/comments had the potential to and/or did compromise the board in violation of N.J.S.A. 18A:12-24.1(e), the SEC rejected those conclusions.  In doing so, the SEC found that, although the subject matter of the social media posts related to the business of the board, there was an “insufficient nexus between [respondents’] personal Facebook page and [their] membership on the Board, such that a reasonable member of the public would not perceive that [they were] speaking pursuant to [their] official duties.”  Even though the social media accounts were used by the named respondents in their respective board campaigns, and did not include a disclaimer, the SEC noted, “The posts … do not mention [respondents’] membership on the Board nor [did they] advertise or rely upon [their] Board membership when publishing material on [their] social media page[s].” Consequently, the SEC rejected the findings of violations, and dismissed both matters.

Nonetheless, the SEC did note that “board members should recognize and refrain from inappropriate communications that have no place in the educational setting,” and “how school officials conduct themselves outside the scope of their duties as school officials is best addressed at the time of election.” 

Notwithstanding the SEC’s determination in C19-22 and C20-22, board members are reminded that, in C106-22, the SEC specifically advised: “…once elected to a seat on the Board, it is no longer prudent or appropriate to use one’s campaign page to post statements or comments on social media. Continued use of a campaign page following election can only, as here, cause confusion as to the capacity in which one is speaking, and this will invariably lead to the filing of ethics complaints. Transparency in communication cannot be overstated, and continued use of one’s campaign page unnecessarily obfuscates the public’s understanding of the capacity in which one is speaking on social media.” Accordingly, board members should consult with their board attorneys to understand when continued use of a “personal” social media account, which was previously used to campaign for a seat on the board, could lead to a violation of the act. 

Advisory Opinions

Creation and Maintenance of a Social Media Page Regarding District Operations. In A02-22, a board member inquired whether they, “as a private citizen,” could create and maintain a Facebook page that answered “operational” questions from the community about the district, and whether the board’s bylaw regarding social media usage violated the act. Although the SEC acknowledged that it did not have the jurisdiction or the authority to determine whether behaviors and/or actions taken strictly as a private citizen violated the act, or whether the board’s bylaw violated the act, it advised the school official that because they “would be providing information relating to the Board and/or your official duties and responsibilities, any attempt to disclaim your speech (as being in your personal or private capacity) would likely be futile.”  As a result, the SEC determined that it “will be difficult, if not impossible for you to avoid conduct that is violative of the Act (whether actual, or perceived).”

Non-Dues Paying Member of a Local Education Association. In A03-22, a board member, who was employed in another school district but not a dues paying member of their local education association, questioned whether, because of their non-dues paying status, they could participate in contract negotiations with the local education association. According to the SEC, even though the board member does not pay union dues, their position/title is within the scope of the bargaining unit represented by the local education association. Therefore, non-dues paying member status notwithstanding, the SEC advised that the analysis from A24-17 applies, and the board member is precluded from participating in negotiations with the local education association. 

Working in the District  In A01-23, a board member sought advice as to whether, in connection with their employment with a food services vendor, they could continue to work in the district without violating the act. Based on the facts and circumstances presented, the SEC advised that, because the board member is ultimately subject to supervision from senior leadership, including the superintendent and building principal(s), it would be a conflict of interest for the board member to continue working in the district while also serving as a member of the board. Therefore, the SEC recommended that the board member ask their employer to be reassigned to another school district. The SEC additionally advised that, while employed by the food services vendor, the board member would need to recuse themselves from discussions and votes concerning their employer, and regarding competing vendors or entities that offer the same (or similar) products or services as their employer.

Advocating for Students and Families in the District. In  A03-23, a board member who was previously employed as an administrator and special education teacher in another school district, asked whether, because of their education and experience, they could serve on the local special education parent advisory group, and advocate for students and their families in the district. Per the SEC, the board member’s service in the district would be a conflict because the public could view their role as an advocate to be in substantial conflict with their duties and responsibilities as a board member; as a mechanism through which they could use or attempt to use their official position to secure unwarranted privileges or advantages for others; and/or as a service that might reasonably be expected to prejudice their independence of judgment in the exercise of their official duties as a board member. Further, in advocating for a district student or family, the board member could be doing so in opposition, whether directly or indirectly, to district staff and administration, and in opposition to the board itself. Nonetheless, the SEC encouraged the board member to provide such services outside the district.

Simultaneous Service on Charter School Boards of Trustees. In A04-23, a charter school trustee inquired whether they could simultaneously serve on two different charter school boards of trustees without violating the act. The SEC advised that it did not have the authority to determine whether such dual office holding violated Fischer v. Attorney General of N.J., N.J.S.A. 19:3-5.2, or N.J.S.A. 40A:9-4, but if such a determination was rendered by the appropriate court of law or other administrative agency, a violation of the act could then be sustainable. The SEC further advised that if the charter school trustee chose to serve in both positions simultaneously, they would need to recuse themselves from discussions and votes concerning the other charter school’s board of trustees.

Board President with Conflicts and Selection of Committees. In A05-23, a school official advised that the board president is a retired district employee receiving a pension; has a child and child-in-law employed in the district; and a child employed in a neighboring school district. Considering the board president’s conflicts, the school official inquired whether the board president can select members of the board’s committees, including who will serve as the chairperson of those committees. The SEC advised that because the board president’s pension comes from a state pension fund, and not from local district funds, receipt of a pension is not a conflict. However, because the board president has at least one immediate family member or relative employed in the district, the SEC advised that the board president could not choose the members of, or the chairpersons for, any board committee involving or relating to their immediate family member or relative’s district employment. The SEC noted that because the vice president was not conflicted, the vice president could choose the committee members of, and serve as the ex-officio member of, those committees for which the board president has a conflict. The SEC also addressed the conflict of another board member who had a spouse that worked in the district, and reiterated that the conflict analysis from A24-17 applied.

Although a previous advisory opinion, A01-01, indicated that a board president could appoint the members and chairperson of the board’s negotiations committee despite having a conflict of interest with regard to negotiations because their spouse was employed in the district, the distinguishing factor appears to be that in A05-23, and unlike in A01-01, the conflicted family members were members of the bargaining unit represented by the local education association. In addition, at the time A01-01 was made public, the Code of Ethics for School Board Members had not yet been adopted by the Legislature and, therefore, its provisions were not considered by the SEC in determining whether the board president could violate the act if they appointed the members and chairperson of the negotiations committee. 

Employment of the Spouse of a Board Member’s Brother in the District. In A06-23, a board member asked whether they could participate in the process to appoint a new superintendent when the candidate to be appointed presently supervises the spouse of the board member’s brother. Although the SEC advised that there was no per se conflict because the spouse of the board member’s brother is an “other” for purposes of N.J.S.A. 18A:12-24(b), and is not a “relative” within the meaning of the act, the facts and circumstances necessitated the board member’s recusal from the appointment process because of the direct supervisory relationship between the candidate for the superintendent position and the spouse of the board member’s brother. However, once appointed, the SEC advised that the board member could participate in the evaluation of, and in other employment decisions concerning, the superintendent.

Importantly, and as part of this advisory opinion, the SEC published a chart detailing the familial relations that do, and do not, fall within the scope of its newly expanded definition of “relative.” (The chart is reproduced on page 19.) In delineating these relationships, the SEC emphasized it is the school official’s marriage that determines whether an individual is a relative, and the marriage of a school official’s relatives to others will not expand the breadth of such relatives.

Employment of Sister-in-Law, Child, and Spouse in the District. In A07-23, board counsel inquired about the limitations that apply to board member activities when they have family members employed in the district. First, regarding the board member whose sister-in-law (the sister of the board member’s spouse) worked in the district, the SEC advised that although the board member’s sister-in-law was an “other” for purposes of N.J.S.A. 18A:12-24(b), she was a “relative” within the meaning of the act. Therefore, A24-17 governed the limitations on the board member’s activities with respect to matters involving the superintendent and the local education association. Second, concerning the board member whose child was employed in the district as an intermittent per diem substitute, the SEC advised that the limitations would turn on whether the child was regarded as a member of the local education association and, again, would be governed by the guidance in A24-17. Finally, for the conflicted board member who sought access to the superintendent’s evaluation once completed by the other nonconflicted board members, the SEC advised that recusal is absolute in all matters, and that the access of conflicted members is “akin to that offered to any other member of the public.”

Service as a Subcontractor. In A08-23, a board member wanted to know whether his company could bid on a public contract stemming from a shared services agreement between the board and the town. Of importance, and if selected, the contractual agreement would be between each subcontractor(s) and the town, and not with the board. Based on the facts and circumstances presented, the SEC advised that the board member’s company could bid on the public contract. However, if the board needed to review, discuss, or approve any matter(s) related to the subcontracting agreement or the work to be performed on district property, the board member would need to recuse themselves from all such discussions and votes, and was cautioned against using any information that was not publicly available for their own or their business’s gain. The SEC further advised that, if the board member’s company was awarded the contract, the board member should, to the extent possible, not personally perform the work. However, if their physical presence was unavoidable, the board member was cautioned as to how to conduct themselves while on district property.

Personal Relationship between Superintendent and Board Secretary/Business Administrator. In A09-23, board counsel inquired whether the superintendent and the board secretary/business administrator have, due to their “personal relationship,” a conflict and, if so, what prophylactic measures should be taken, beyond those already in place, to avoid a violation(s) of the act. The SEC confirmed, as suggested, that the superintendent and the board secretary/business administrator are an “other” to each other, and that neither can provide the other with an unwarranted privilege, advantage, or employment. In addition, although the evaluation of, and the supervision of, the board secretary/business administrator was nearly entirely delegated from the superintendent to others, the superintendent still retained the ability to supervise the board secretary/business administrator “as may be necessary for” district operations. However, the SEC advised that the superintendent should not, because of the nature of their personal relationship, be involved in any aspect of the board secretary/business administrator’s evaluation or supervision, including as would be “necessary” for district operations. The SEC acknowledged this advice could make it difficult for each to perform their duties and responsibilities, but advised they could seek employment elsewhere, and that such limitations were the “consequence of entering into a personal relationship in the workplace.”

Employment of a Child in an Afterschool Program. In A10-23, board counsel asked whether a board member is prohibited from being involved in matters related to the superintendent when their child is employed as a student employee in an afterschool care program, and is supervised by a district employee (a teaching staff member) who is ultimately supervised by the superintendent.  The SEC advised that the board member has a conflict with respect to the immediate supervisor of their child, and to all other employees and administrators “up the chain of command,” including the superintendent. In addition, because the board member’s child is supervised by a member of the local education association, the board member also had to recuse themselves from all matters related to the local education association.

Board counsel also sought clarification on whether there was a minimum number of nonconflicted members needed to evaluate the superintendent. As to this inquiry, the SEC advised that two nonconflicted board members were sufficient, and that the nonconflicted board members could consult with board counsel, hire an outside consultant, or obtain assistance from an appropriate administrator(s) as necessary.

Employment of Mother-in-Law in the District. In A11-23, a board officer sought clarification on the limitations that apply to a fellow board member’s activities when their mother-in-law is employed in the district as a paraprofessional, and also regularly serves as a substitute in the principal’s office. Although considered an “other” for purposes of N.J.S.A. 18A:12-24(b), the SEC advised that the board member’s mother-in-law is a “relative” within the meaning of the act. Therefore, and pursuant to A24-17, the board member is precluded from being involved in all matters related to the superintendent, all matters related to negotiations with the local education association and to all matters relating to the mother-in-law’s employment including, without limitation, the scheduling of the mother-in-law’s employment and/or budget discussions, which could possibly implicate the position(s) held by the board member’s mother-in-law.

Board members 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 advisory opinions, please contact the NJSBA Legal and Labor Relations Department at 609-278-5279, or your board attorney for specific legal advice.