When school board members and charter school trustees take their oath of office, they do not lose their constitutional rights to free speech.
However, the School Ethics Act, N.J.S.A. 18A:12-21 et seq. (SEA), places limits on what board members may say when speaking in their role as a board member (note that here, the term “board member” includes board of education members and charter school trustees). School Ethics Commission (SEC) decisions and advisory opinions have clarified when board members must include a disclaimer with their statements to make clear that they are not speaking in their capacity as a board member or on behalf of the board. Notably, the SEC recently issued decisions indicating that a disclaimer statement alone may not be sufficient to avoid a violation of the SEA. It is useful for board members to know when they should be careful to include a disclaimer statement, and when board member comments may overstep the act even where a disclaimer is included.
When are Disclaimers Required? The SEC has issued several advisory opinions related to the topic of disclaimers. In A02-06, a board member “asked whether, as a member of the board, you can express your opinion regarding the district’s proposed budget to the press in a letter to the editor of your local newspaper.” In the opinion, the Commission considered the following two provisions in the SEA:
- N.J.S.A. 18A:12-24.1(e), which states: “I will recognize that authority rests with the board of education and will make no personal promises nor take any private action that may compromise the board,” and
- N.J.S.A. 18A:12-24.1(g), which states: “I will hold confidential all matters pertaining to the schools which, if disclosed, would needlessly injure individuals or the schools. In all other matters, I will provide accurate information and, in concert with my fellow board members, interpret to the staff the aspirations of the community for its school.”
The SEC advised that as long as the board member did not hold themselves out as a board member in the letter or statement, and provided information that was accurate and did not disclose confidential information, the board member would not violate the act by sending a letter to the editor expressing the member’s opinion on the budget or making a press statement.
In A03-07, the SEC further clarified A02-06 by indicating:
The Commission believes that the standards established by the Legislature do not sharply curtail a board member’s First Amendment rights. Rather, the standards provide the Commission with guidance in balancing a board member’s rights as a private citizen with the interest of the Legislature in ensuring that a board member preserves public confidence and avoids conduct that would violate the public trust or create a justifiable impression among the public that such trust is being violated. See N.J.S.A. 18A:12-22(a).
The SEC advised in A03-07 that a board member would not violate the SEA by sending a letter to the editor that expressed the member’s opinion about the budget under the following conditions: (1) the member identifies themselves as a board member in the letter, (2) the board member indicates in the letter that it is not authorized by or written on behalf of the board, (3) the member provides accurate, non-confidential information, and (4) the member ensures that their private action does not compromise the board (the latter a fact-sensitive, case-by-case determination).
The SEC considered a different issue on the topic of disclaimers in A36-14. In that opinion, a board member asked the Commission whether it would violate the Act to endorse candidates in the board election. Additionally, the member asked whether any disclaimers would be required, and whether there would be limitations on usage of publications, lawn signs, and social media. The SEC noted that though the member would not violate the SEA by expressing themselves politically in regard to endorsements in the member’s capacity as a private citizen, disclaimers were required in some contexts.
Specifically, the opinion stated that disclaimers, which make clear that the endorsement was made as a private citizen and not as a member of the board or on behalf of the entire board, are required for: (1) pamphlets or other publications, (2) board member-created lawn signs (as distinct from a “generic party-created sign”) and (3) social media. Further, board members may only publish these endorsements on their own social media accounts, and not on accounts representing the board or the individual in their capacity as a board member.
An SEC decision on an ethics complaint is also instructive as to when a disclaimer is needed. In a May 2021 decision, C43-19, the SEC issued a censure of a board member in response to a political flyer requesting that voters support particular candidates, where the board member referenced his board membership on the flyer but did not indicate that he was speaking in his capacity as a board member and not as a private citizen. In addition to violations of N.J.S.A. 18A:12-24.1(e) and (g), the SEC also found violations of subparagraph (f) (“I will refuse to surrender my independent judgment to special interest or partisan political groups or to use the schools for personal gain or for the gain of friends.”).
What Does a Disclaimer Look Like? In a March 2019 decision, the SEC provided an indication of what an effective disclaimer could look like. In decision C64-18, the Commission reviewed an ethics complaint filed about social media posts. In the matter, a board member who was running for reelection was asked about why other candidates were blocked from participating in an online debate. The member responded that the blocking was related to harassment targeting her elementary school child. The complainant claimed that, in the context in which the response was made, the board member clearly identified the complainant’s child as the perpetrator of the alleged bullying, and asserted the comments were inaccurate and harmed the reputation of his child and spouse.
The SEC found that the social media comments were “clearly linked” to the member’s board membership and candidacy, and did not include a disclaimer such that it would have been reasonable for a member of the public to perceive that the statements were made in her board member capacity. In the decision, the SEC stated in a footnote:
A prominent disclaimer (caps/bold), such as, “the following statements are made in my capacity as a private citizen, and not in my capacity as a board member. These statements are also not representative of the board or its individual members, and solely represent my own personal opinions,” may have avoided the appearance — actual or perceived — that the statements were made in Respondent’s capacity as a Board member.
Though the SEC did not state that this was the only acceptable form of a disclaimer, presumably this language provides guidance to board members about the language needed for an effective disclaimer statement. Significantly, the decision also stated: “The Commission additionally notes that, even if an appropriate disclaimer is used, the substance of a post/statement can, nevertheless, render the disclaimer meaningless.” The implications of this latter statement will be discussed further below. It should be noted, however, that in C64-18, the complaint against the member, who was not reelected, was ultimately dismissed because, among other reasons, the basis of the complaint centered on alleged defamation, which was outside of the SEC’s authority.
When is a Disclaimer Insufficient? The SEC has noted that a disclaimer alone may not be sufficient to prevent a violation of the SEA, where the statements may give the appearance that the individual is making them in their capacity as a board member or on behalf of the board. In a case from January 2020, Commissioner Decision 36-20, the New Jersey Commissioner of Education affirmed the SEC’s determination to suspend a board president for six months after the board member posted comments on his blog attacking a teacher in the district. The matter was first heard by an administrative law judge (ALJ), who noted that though the member did use a disclaimer on the blog, “it also indisputably represents him as a Board member” and the member referenced that he was a board member multiple times. As a result, the ALJ found that it was “not convincing” that the member was speaking as a private citizen. The SEC adopted the ALJ’s findings of fact and agreed with some of the grounds on which the ALJ found violations of the Act, and the Commissioner concurred with the recommended penalty. It should be noted that in addition to violations of N.J.S.A. 18A:12-24.1(e) and (g), further violations of the SEA (specifically, N.J.S.A. 18A:12-24.1(c) and (i)) were also found based on the content of the blog.
In a case decided by the SEC in April, C71-18, a board member was censured (even though the member resigned) after writing an opinion piece endorsing some school board candidates but advocating against the election of another candidate. The piece included a disclaimer stating: “The author is writing this endorsement on his own personal behalf. His opinions are his own.” The board member admitted that the opinion piece “was an attempt to influence the voters,” and “that he did not seek approval from the Board or its counsel before writing the Op-Ed.”
The ALJ hearing the case noted that the disclaimer “was insufficient to convey that he was expressing his personal opinion, largely due to his multiple references to his position on the Board and Board matters generally…” The ALJ found that the member had violated N.J.S.A. 18A:12-24.1(e) as well as N.J.S.A. 18A:12-24(b), the latter of which states: “No school official shall use or attempt to use his official position to secure unwarranted privileges, advantages or employment for himself, members of his immediate family or others.” The ALJ found that N.J.S.A. 18A:12-24(b) was violated because “of the appearance that they were receiving a Board endorsement.” The SEC adopted the ALJ’s findings of fact and determinations regarding the relevant violations of the SEA.
The SEC decision went on to note that there is a “robust body of decisions and advisory opinions” providing guidance on the usage of disclaimers, and further stated:
These decisions and advisory opinions also make clear that the use of a disclaimer does not give a school official carte blanche to then discuss Board business and/or matters in a way that is, or appears to be, on behalf of the Board. In this way, it is the substance of the writing, and not the disclaimer itself, that will dictate whether the school official has rendered a disclaimer meaningless.
It should be noted that the New Jersey Commissioner of Education has not yet reviewed the penalty in this case as of the time of this writing.
Parting Thoughts on Disclaimers In view of recent SEC decisions on the topic of disclaimers, in short, board members should not depend on a disclaimer statement alone to avoid possible violations of the SEA. They should be careful to review the content of any messaging that may require a disclaimer to determine if they are still appearing to be speaking in their capacity as a board member or on behalf of the board. Board members with questions about disclaimers, including when and how to use them, are encouraged to consult with their board attorney, or for more information, contact NJSBA’s Legal, Labor and Policy Department at (609) 278-5254.