As many experienced board members know, the School Ethics Commission (SEC) is the legal entity authorized to implement the School Ethics Act, N.J.S.A. 18A:12-24-1 et seq. (SEA). While some board members believe that the New Jersey School Boards Association enforces the act, it is actually the SEC which has enforcement authority. Your Association plays an important role by providing information and professional development on school ethics and assisting the SEC by reporting completion of training required under the New Jersey School Ethics Act. However, interpretation and enforcement of the Act falls under the authority of the SEC. Therefore, it is important that board members understand the function of the SEC, its purpose, and most importantly, the guidance it issues through the publication of formal decisions and advisory opinions so that board members are aware of ethical requirements.
The SEC was established in N.J.S.A. 18A:12-27, and consists of nine members all of whom serve without compensation. No more than five members may be from a single political party. Two members must be board members, two members must be school administrators, and five must be citizens who are not school administrators. All members are appointed by the governor and serve at his or her pleasure. All members serve for three-year terms, and unexpired terms and vacancies are filled by the governor.
The SEC has the authority to issue advisory opinions, and statements, conduct investigations, convene hearings, and compel the attendance of witnesses and documents to these hearings in order to better serve the public’s interest in having trained and knowledgeable individuals serve on local boards of education.
One of the important underlying purposes of the SEA, and its enforcement arm, the SEC, is to provide board of education members with guidance as to acceptable conduct so that both the public and board members can be well-informed and conduct themselves accordingly. To that end, the SEC has published a number of interesting decisions and advisory opinions that are summarized here to educate board members and the public as to what the SEC has deemed appropriate or inappropriate conduct.
Conflict of Interest in Ethics Charges and a Civil Case In I.M.O. Gonzalez et al., Perth Amboy, released in 2019, the former superintendent of schools filed both civil litigation and ethics complaints against several board members. During the course of the litigation, the board and former superintendent entertained settlement discussions and ultimately settled the litigation agreeing to dismiss the ethics charges against the sitting board members. However, in reaching the settlement, the board members who were the subject of the ethics complaints participated in both deliberations and the vote on the settlement. A second set of ethics charges soon followed and the matter was forwarded to an administrative law judge (ALJ) for an initial decision.
In response to the new ethics complaint, the board members argued that settlement of the litigation was in the best interest of the district and avoided expenses associated with protracted litigation. However, the administrative law judge who presided over the hearing found that argument unpersuasive. To the contrary, the ALJ found that because the board members were connected to the litigation by virtue of the related ethics charges, the board members had a personal interest in the outcome of the matter. The SEC adopted the judge’s decision and specifically noted that the board members conveniently ignored the fact that approval of the settlement terms also dismissed multiple ethics charges that were then pending against those very board members. According to the SEC, “[r]espondents acted in a way that is the antithesis of ethical conduct, and the definition of self-serving behavior.” The SEC also noted that the members involved, who were experienced board members, failed to access the board attorney, and most importantly, failed to invoke the doctrine of necessity, despite the fact that it was invoked for a different agenda item. Accordingly, the SEC found that the board members violated the SEA and recommend that the commissioner of education issue a six-month suspension.
The commissioner adopted the penalty recommendation but modified it so that the board members served their suspensions on a rotating basis so as not to affect the board’s ability to secure a quorum for board meetings. Subsequently, the commissioner modified the penalty to censure when all of the affected members resigned from the board.
Rudeness to a Member of the Public In a matter alleging an unusual display of public anger, Jones v. Tunstall, the SEC determined that arguably rude comments from a board member to a member of the public did not constitute a violation of the SEA. In this matter, Jones, a parent was attending a public board meeting, and observed a different parent voice concerns about her child during the public comment portion of the meeting. Because Jones allegedly had the same concerns as the speaker, Jones stood and applauded the speaker’s comments. At this point, the board member allegedly remarked, “[Y]ou should be worried about your bad a** kids.” When Jones replied, “[E]xcuse me,” the board member stated, “[Y]ou heard me, you need to worry about your bad a** kids.”
After a complaint was filed alleging several violations of the School Ethics Act, the board member filed a motion to dismiss asserting that the complaint failed to specify a violation of the SEA. In reviewing the complaint and motion to dismiss, the SEC noted that N.J.S.A. 18A:12-24.1(a) requires board members to enforce all laws, rules of the State Board of Education, and court orders pertaining to the schools. Moreover, according to the SEC, a violation of the above provision requires factual evidence from a court of law or administrative agency demonstrating such a failure of enforcement. In reviewing this matter, the SEC determined that the complaint failed to provide any such evidence; accordingly, that charge was dismissed. The SEC noted that absent an official finding, even if the facts were true, no violation of 12-24.1(a) could be proven.
In an additional count in the complaint, Jones asserted that the board member, in making the comments, took action beyond the scope of his authority as a board member in order to curry favor with a certain group within the district. Again, the SEC determined that even if the facts were as asserted, they would not rise to a violation of the act. Nothing in the factual record indicated that the board member exceeded his authority as a board member or that those comments had the ability to compromise the board. Therefore, the SEC dismissed the charges.
However, the dismissal of the matter did not indicate approval of the board member’s alleged actions. The SEC concluded, “Even if those opinions and viewpoints are not in line with those of the Board, all members of the public should be treated with decency, and respect.”
The SEC decision in Jones, should be compared to C21-04. In this decision, the School Ethics Commission determined that a board member violated the School Ethics Act when she confronted the superintendent after a board meeting and had to be restrained by other board members. In the complaint, the complainant indicated that he witnessed the board member assault the superintendent at the conclusion of a public hearing. The complaint alleged that the board member’s verbal abuse and hostile actions caused the superintendent to fear imminent bodily harm. Specifically, the complaint asserted that the board member pushed her way toward the superintendent while a board member was escorting the superintendent to her car. The complaint further asserted that the board member’s actions were totally unprofessional, lacked proper decorum, and violated the expected standards of a public official. Furthermore, the conduct was alleged to be a violation of N.J.S.A. 18A:12-24.1(e) and (i), which precludes board members from taking private action that might compromise the board and to respect school personnel in the proper performance of their duties respectively.
In analyzing this matter, the SEC relied on N.J.A.C. 6A:28-7.1, which, at the time of the decision, defined “private action” as “action taken by a member of a district board of education or a member of a charter school board of trustees that is beyond the scope of the duties and responsibilities of a member of a district board of education or a member of a charter school board of trustees.” The SEC then noted:
To the extent there was any objection to this action, once the vote was taken, it was not appropriate for the respondent to unilaterally engage in further discussion with [the superintendent], as she did upon exiting the building, let alone to engage in a heated exchange.
Moreover, there can be no doubt that respondent’s physical intervention between [the superintendent] and her car in the parking lot, respondent’s pushing aside of another board member, and respondent’s parting words to [the superintendent] as she drove away, constituted private action significantly beyond the scope of her duties as a board member.
The SEC further noted that not only must the action be beyond the scope of a board member’s duties, that action must also have an ability to compromise the board. To that point, the SEC found that because of this incident, the superintendent was fearful for her safety, was afraid to stay at work past 4 p.m., and was fearful of repercussions. In addition, the SEC noted that five members of the board had to give formal statements to the local police department, which could have had consequences for the board. On a related note, the SEC explicitly pointed out that the statute merely requires that the conduct be such that it may compromise that board; allowing the inference that actual compromise need not be demonstrated. According to the SEC, the board member’s conduct in this matter, by having the ability to compromise the board, clearly met that standard. The SEC concluded by recommending a penalty of censure but noted that had the board member not resigned before the SEC hearing, the penalty recommendation would have been more severe.
Social Media and Ethics Turning briefly to the subject of social media, in C70-17, the SEC determined that a board member violated the SEA where that board member used his social media account to attack an employee, who then filed ethics charges against the board member.
In this matter, the administrative law judge hearing the matter determined that the teacher had been employed in the district for 18 years as a properly certified teacher, had been on the local union’s negotiating committee, and had been “released” on a few occasions to conduct union business during school hours, as was permitted by the collective negotiations agreement.
According to the ALJ, the dispute first arose when, following a public meeting at which the teacher responded to public comments emanating from the board member, the teacher learned that the board member published a blog about the town and that she, for the first time, was mentioned in this blog. Following that initial post, the teacher was mentioned several more times in the blog, and found several posts that “referenced the teacher in a negative manner, depicted a picture of the street where she lived, undermined her credibility with members of the LEA, questioned her qualifications for her teaching position, implied she received her position through patronage, questioned her salary and honesty, and referred to her as a ‘greedy bastard’ and ‘union bully.’”
After reviewing the postings, the ALJ determined that the board member, who was not a member of the negotiations committee, acted in a manner which was “unrelated to his duty to develop the general rules and principles that guide and manage the school district,” and that his postings contained “gross misrepresentations” that were designed to interfere with negotiations.
The ALJ further noted repeated references to the teacher’s salary on his blog, highlighting that the blog alleged the teacher was unqualified, that she received her job through patronage, and that she was a “greedy bastard” who did not “put children first.” Accordingly, the ALJ found that the board member’s “actions were beyond the scope of his duties as a Board member, and private action of that kind may compromise the board.” The ALJ continued, “[i]t is evident that a Board member smearing and verbally attacking a teacher in a publicly accessible forum diminishes the integrity of the Board,” and “[t]he aggressive and intense nature of the posts may clearly have ‘intimidated the public from coming forward and addressing the Board.’”
In response, the board member argued that the comments were protected by the First Amendment because he was writing as a private citizen and issued the required disclaimer, indicating that he was speaking as a private citizen and not on behalf of the board. The ALJ subsequently addressed that contention by relying on a previous SEA ethics opinion, A02-06. In that opinion, the SEC advised that although a board member does not give up his or her First Amendment rights while serving as a board member, each member must still comply with the provisions of the SEA. In this matter, the ALJ found that while the board member claimed to be writing as a private citizen, his blog also referenced his status as a board member on several occasions, therefore the ALJ was not persuaded that the board member was speaking as a private citizen, and concluded that the postings were not deserving of First Amendment protection.
Upon reviewing the initial decision, the SEC adopted the ALJ’s conclusion that the board member violated several provisions of the SEA. The SEC indicated that the board member should have “taken greater care” than to post inaccurate information and disparaging comments about an employee on social media. Accordingly, after having found a violation of the SEA, the SEC recommended that the commissioner issue a six-month suspension. Earlier this year, the commissioner adopted the penalty recommendation and suspended the board member for that period.
In essence, the purpose of the School Ethics Act is to provide clear guidance to board members as to standards of conduct that the public has a right to impute to board members and to expect compliance. It is hoped that by summarizing these matters, the NJSBA can assist in that charge.
If you have any questions, please feel free to contact the local board attorney or the NJSBA Legal and Labor Relations Department at (609) 278-5254.